People vs. Cogonon

The death penalty cannot be imposed on appeal even if RA 7659 took effect during the pendency thereof, where the trial court promulgated its decision while the death penalty was still constitutionally proscribed, because penal laws have retroactive effect only insofar as they favor the accused. Additionally, where multiple deaths result from several discharges of firearms by conspiring assailants, the crimes may not be complexed, and separate liabilities for each murder, frustrated murder, or attempted murder must be imposed.

Gerardo Cogonon was a member of the Civilian Home Defense Force (CHDF) in Calatrava, Negros Occidental, under the leadership of one Marcial Mahilum. As a CHDF member, he was issued an M-16 Armalite rifle and was familiar with members of the local police force, including T/Sgt. Tucaling and P/Sgt. Mercado, from frequenting the Municipal Hall. The relationship between the CHDF and the police had become strained following an order by one Capt. Ponteras recalling firearms issued to CHDF members, which the trial court found generated resentment among them. Cogonon was charged together with Andres Delima, Jr., Rodrigo Romeo, and nine others for the ambush of a police patrol team.

On the evening of October 14, 1985, a certain Heminiano Clemen, alias "Maning," reported to the Calatrava police station the presence of armed men at the house of barangay councilman Tirso Claro in Barangay Lemery. Among the armed men was one Nonoy Cogonon. In response, station commander T/Sgt. Ermelino Tucaling organized a seven-man team composed of P/Sgt. Epifanio Mercado, Pfc. Rogelio Aburido, Pfc. Camelo Algaba, Pat. Nestor Era, Pat. Leo Oebanda, and Pat. Richard Sumili. The team boarded their patrol vehicle, a "back to back" Ford Fiera, and proceeded first to the house of Tirso Claro, then to Sitio Daang Lungsod where a benefit dance was being held, and finally to Barangay Castellano, failing to encounter any armed group at each location. They then turned back toward Sitio Daang Lungsod.

By then it was approximately 10:00 in the evening. T/Sgt. Tucaling was driving, with Pat. Oebanda beside him. In the back, Pfc. Aburido and Pat. Era sat on the left side, while Pat. Sumili, Pfc. Algaba, and P/Sgt. Mercado occupied the right side. As the vehicle negotiated a hilly curve in Sitio Daang Lungsod, a rifle grenade struck it just below the windshield and exploded. The explosion was immediately followed by a volley of gunfire from both sides of the road. Tucaling lost control and the vehicle swerved into an embankment, coming to a stop parallel to the road with its headlights—undamaged by the firefight—pointing toward the attackers, thereby illuminating them.

According to the prosecution, whose version was adopted by the trial court, P/Sgt. Mercado recognized appellant Gerardo Cogonon on the left side of the road, wearing a fatigue uniform and armed with an M-16 rifle. Mercado had known Cogonon prior to the incident as a CHDF member. Mercado also identified alias "Goliath" (Rodrigo Romeo), Guillermo Empenado, and alias "Agui" (Violeto Tormis). Pfc. Algaba corroborated Mercado's identification. The gun battle lasted approximately fifteen minutes. When it ended, T/Sgt. Tucaling, Pat. Oebanda, and Pat. Sumili were dead on the spot, while Pfc. Algaba, P/Sgt. Mercado, Pfc. Aburido, and Pat. Era sustained various injuries and were brought to the San Carlos Planters and Laborers Hospital for treatment.

For his part, appellant interposed denial and alibi. He testified that in the afternoon of October 14, 1985, he attended a thanksgiving party at the house of Lemy Cahayagan, whose family cultivated his farm in Barangay Cruz. He arrived at 5:00 p.m., had dinner at 9:00 p.m., and thereafter drank tuba with several companions until midnight, remaining at the Cahayagan residence until 7:00 a.m. the following day. Lemy Cahayagan corroborated this account and testified that Barangay Cruz is approximately twenty kilometers from Barangay Lemery and could not be reached via the national highway. The trial court, however, credited the prosecution's evidence, finding that the distance between the crime scene and the alleged location of the party was not so great as to make appellant's presence at the ambush physically impossible.

• Presumption vs. Evidence: Appellant contended that his conviction was predicated on the trial court's presumption that the crime was perpetrated by the CHDF, of which he was a member, rather than on clear and positive evidence. He pointed to portions of the trial court's decision attributing the ambush to CHDF resentment over a firearms recall order, asserting he never testified to that effect.
• Alibi Should Not Be Disregarded: Appellant argued that his defense of alibi should not be totally disregarded, and that taken in light of all the evidence on record, it may suffice to acquit him, since every circumstance must be considered in favor of the presumption of innocence.
• Conviction Cannot Rest on Speculation: Relying on Gaerlan vs. Court of Appeals, appellant maintained that his conviction cannot be predicated on a presumption or speculation but must be grounded on clear and positive evidence proving guilt beyond reasonable doubt.

• Sufficiency of Evidence: Whether the prosecution proved appellant's guilt beyond reasonable doubt, notwithstanding his defenses of alibi and denial.
• Credibility of Witnesses: Whether the trial court's assessment of the credibility of prosecution witnesses, particularly their identification of appellant as one of the ambushers, should be disturbed on appeal.
• Nature of Crimes Committed: Whether the crimes committed should be treated as complex crimes of multiple murder and multiple frustrated murder, or as separate offenses.
• Imposition of the Death Penalty: Whether the death penalty may be imposed on appeal despite RA 7659 having taken effect during the pendency thereof, given that the trial court promulgated its decision while the death penalty was constitutionally proscribed.

• Sufficiency of Evidence: Yes. Appellant's guilt was established beyond reasonable doubt through the positive identification by surviving police officers, which prevailed over the inherently weak defenses of alibi and denial.
• Credibility of Witnesses: No. The trial court's credibility assessment was not disturbed, no fact or circumstance of weight having been overlooked, misapprehended, or misinterpreted.
• Nature of Crimes Committed: The crimes should be treated as separate offenses rather than complex crimes, because the killings resulted from several discharges of firearms by conspiring assailants. Appellant was held liable for three murders, one frustrated murder, and three attempted murders.
• Imposition of the Death Penalty: No. The death penalty could not be imposed on appeal, because the trial court promulgated its decision on November 14, 1989, when the 1987 Constitution still proscribed the death penalty, and RA 7659's re-imposition could not be applied retroactively to the accused's prejudice.

• Sufficiency of Evidence: Although a portion of the trial court's decision appeared to rest on facts not of record—specifically, the inference that CHDF resentment over a firearms recall order motivated the ambush—a further reading of the decision showed that the conviction was based principally on positive testimony. P/Sgt. Mercado and Pfc. Algaba both testified that they saw appellant at the side of the road, armed and fleeing from the scene. Both had known appellant prior to the incident and had no ill motive to testify falsely. The patrol vehicle's headlights remained undamaged and illuminated the attackers, enabling identification. The defense of alibi, inherently weak and easily fabricated, cannot prevail against positive identification. Moreover, it was not physically impossible for appellant to have been at the crime scene, given the relatively short distance between the ambush site and the place where the party was allegedly held.

• Credibility of Witnesses: Assessment of witness credibility is best undertaken by the trial court, which has the opportunity to observe witnesses firsthand and note their demeanor under questioning. Findings on such matters will not be disturbed on appeal unless facts or circumstances of weight have been overlooked, misapprehended, or misinterpreted. No such reason to depart from this rule was found in the present case. The conditions of visibility were favorable, the witnesses were not biased, and the prosecution witnesses had known appellant before the ambush, precluding mistaken identity. It is a natural reaction of victims of criminal violence to strive to observe and remember the appearance of their assailants, and the policemen who survived the ambush were themselves the victims of the assault.

• Nature of Crimes Committed: The killings were qualified by treachery, as the perpetrators employed means and methods tending directly and especially to insure execution without risk to themselves. The essence of treachery is a sudden and unexpected attack without provocation. Although the victims were armed and returned fire, the established facts revealed a consciously adopted plan to completely surprise the victims. With respect to the injured officers, it was conclusively proven that P/Sgt. Mercado would have died without timely medical attention, establishing frustrated murder as to him. However, it was not conclusively proven that the other three injured officers would have died, so appellant was liable only for attempted murder as to them. Because the killing of the three policemen was committed by several discharges of firearms, the resulting crimes could not be complexed, and appellant was held liable for separate offenses. Conspiracy was duly proven by the concerted action of the attackers in waiting for the patrol jeep and shooting it, making all conspirators liable as co-principals regardless of the degree of participation.

• Imposition of the Death Penalty: Article 248 of the Revised Penal Code penalizes murder with reclusion temporal in its maximum period to death. The aggravating circumstance that the victims were public authorities engaged in the discharge of their duties (Article 14[5], RPC) was present, with no mitigating circumstance to offset it. Under the law in force at the time of commission on October 14, 1985, the death penalty would have been warranted. However, the trial court promulgated its decision on November 14, 1989, when the 1987 Constitution proscribed the death penalty. RA 7659, which re-imposed the death penalty, took effect only on January 1, 1994. Article 22 of the Revised Penal Code provides that penal laws shall have retroactive effect insofar as they favor the person guilty of a felony. The appeal was submitted for resolution prior to RA 7659's effectivity, and the accused should not be prejudiced for availing of the right to appeal. Increasing the penalty to death on review would collide with the doctrine of resolving all doubts in favor of the accused.

• Positive Identification Prevails Over Alibi and Denial — The defense of alibi is inherently weak and easily fabricated, and cannot prevail against the positive identification of the accused by credible prosecution witnesses, especially where the witnesses had known the accused prior to the incident and had no ill motive to testify falsely. For alibi to prosper, it must be shown that it was physically impossible for the accused to have been at the crime scene. In this case, the relatively short distance between the alleged location of the party and the ambush site negated physical impossibility.

• Trial Court's Credibility Assessment Is Accorded Great Weight — Findings of the trial court on the credibility of witnesses and their testimonies will not be disturbed on appeal unless facts or circumstances of weight have been overlooked, misapprehended, or misinterpreted, owing to the trial court's unique opportunity to observe the witnesses firsthand and note their demeanor.

• Treachery — The essence of treachery is a sudden and unexpected attack without the slightest provocation on the part of the person attacked. Treachery qualifies a killing as murder where the perpetrators employ means and methods tending directly and especially to insure execution without risk to themselves arising from the defense the victims might make. Even where the victims were armed and returned fire, treachery may still be appreciated where a consciously adopted plan to completely surprise the victims is established.

• Conspiracy Renders All Conspirators Liable as Co-Principals — Where conspiracy is duly proven by concerted action, all the accused are answerable as co-principals regardless of the degree of their participation. It is unnecessary to show that the death of a particular victim was directly caused by bullets from a specific conspirator's firearm.

• Separate Liabilities for Multiple Killings by Discharges of Firearms — Where the killing of multiple victims results from several discharges of firearms, the resulting crimes may not be complexed. The accused is liable for separate crimes for each killing, frustrated killing, or attempted killing.

• Retroactivity of Penal Laws Favorable to the Accused — Under Article 22 of the Revised Penal Code, penal laws have retroactive effect insofar as they favor the person guilty of a felony. The death penalty cannot be increased on appeal where the trial court imposed reclusion perpetua during the constitutional prohibition on the death penalty, even if RA 7659 re-imposing the death penalty took effect while the appeal was pending, because doing so would prejudice the accused for exercising the right to appeal.

• "In conspiracy, all the accused are answerable as co-principals regardless of the degree of their participation." — This passage articulates the principle of collective liability among conspirators, which was applied to hold appellant liable for all crimes resulting from the ambush even though it was not shown that bullets from his firearm directly caused the deaths.

• "In view of the established fact that the killing of the three policemen on patrol was committed by several discharges of firearms, the resulting crimes may not be complexed." — This statement sets forth the rule precluding complexing of multiple homicides where each death results from separate discharges, requiring separate penalties for each offense.

• "He should not be unduly prejudiced for availing of the privilege of appeal to a higher court." — This passage captures the rationale for refusing to impose the death penalty on appeal, anchoring the holding on the principle that an accused must not suffer a harsher penalty by exercising the right to appellate review.

• Gaerlan vs. Court of Appeals, 179 SCRA 20 (1989) — Cited by appellant for the proposition that conviction cannot be predicated on presumption or speculation but must rest on clear and positive evidence. The Court acknowledged the principle but found that the conviction was in fact based on positive testimony, not presumption.
• People vs. Bongadillo, 234 SCRA 233 (1994) — Followed for the rule that where conditions of visibility are favorable and witnesses do not appear biased, their assertion as to the identity of the malefactor should normally be accepted.
• People vs. Canturia, 245 SCRA 275 (1995) — Followed for the principle that it is a natural reaction of victims of criminal violence to strive to observe the appearance of their assailants.
• People vs. Viñas, Sr., 245 SCRA 448 (1995) and People vs. Pija, 245 SCRA 80 (1995) — Followed for the doctrine that the trial court's findings on witness credibility will not be disturbed on appeal absent overlooked, misapprehended, or misinterpreted facts.
• People vs. Acob, 246 SCRA 715 (1995) — Followed for the rule that alibi cannot prevail over positive identification of the accused.
• People vs. Abapo, 239 SCRA 469 (1994) — Followed for the definition of treachery as a sudden and unexpected attack without provocation.
• People vs. Maguikay, 237 SCRA 587 (1994) — Followed for the distinction between frustrated and attempted murder based on whether it was conclusively proven that the injured victim would have died without medical attention.
• People vs. Solon, 244 SCRA 554 (1995) — Followed for the principle that in conspiracy, all accused are answerable as co-principals regardless of the degree of participation.
• People vs. Fabros, 214 SCRA 694 (1993) — Followed for the rule that where multiple killings result from several discharges of firearms, the crimes may not be complexed.
• People vs. Pandiano, 232 SCRA 619 (1994) — Cited as persuasive authority for the proposition that where the trial court imposed reclusion perpetua during the constitutional prohibition on the death penalty, the penalty cannot be increased to death even after RA 7659 took effect, because Article 21 of the Revised Penal Code prohibits imposition of a penalty not prescribed at the time of commission.
• People vs. Parica, 243 SCRA 557 (1995) — Cited for the imposition of reclusion perpetua where the killing occurred before the 1987 Constitution but the case was decided after, because the death penalty was still prohibited at the time of the killing.

• Article 248, Revised Penal Code — Defines and penalizes murder with reclusion temporal in its maximum period to death. Applied to qualify the killings as murder through treachery and to determine the proper penalty range.
• Article 14(5), Revised Penal Code — Identifies as an aggravating circumstance the commission of a crime against a person in authority or public officer engaged in the discharge of his duties. Applied as an aggravating circumstance because the victims were policemen on patrol at the time of the ambush.
• Article 22, Revised Penal Code — Provides that penal laws shall have retroactive effect insofar as they favor the person guilty of a felony. Applied to support the ruling that the death penalty under RA 7659 could not be retroactively imposed to the accused's prejudice.
• Article 64(3), Revised Penal Code — Provides that where there is an aggravating circumstance and no mitigating circumstance, the maximum period of the penalty shall be imposed. Cited in connection with the presence of the aggravating circumstance and the absence of any mitigating circumstance.
• Article III, Section 19(1), 1987 Constitution — Proscribed the imposition of the death penalty. Applied to sustain the trial court's imposition of reclusion perpetua, as the trial court promulgated its decision while this constitutional proscription was in force.
• Republic Act No. 7659 — Re-imposed the death penalty for certain heinous crimes, effective January 1, 1994. Held inapplicable to increase the penalty on appeal because the appeal was submitted for resolution prior to its effectivity and retroactive application would prejudice the accused.

Narvasa, C.J., Davide, Jr., Melo, and Francisco, JJ., concurred.