People vs. Dando

A frontal shooting qualifies as murder by treachery where the attack is sudden, deliberate and unexpected, leaving an unarmed and unsuspecting victim no chance to resist or escape, and minor inconsistencies in an eyewitness account do not impair positive identification constituting proof beyond reasonable doubt.

On November 20, 1991, accused-appellant PO3 Apolinar E. Dando, a member of the Philippine National Police detailed as security to the mayor of Siniloan, Laguna, attended the birthday drinking party of Angelito Millares, Jr. on Pandiño Street, Siniloan. The house of Millares was about 100 to 150 meters from the house of victim Cesar Castro. During the party a .45 caliber pistol was fired, and prosecution witness Aldwin Gemanel, then a young student who had gone to his uncle Millares's house to look for his father, observed Dando fire under a table pointing downward.

Thereafter Gemanel went to his grandmother's house three houses away and stayed there almost an hour. On the way he saw Dando sitting on the sidecar of a parked tricycle in front of Millares's house with a white handkerchief over his face. When Gemanel later went out, he saw Dando get off the tricycle with the handkerchief still covering his face and walk toward the town plaza. Gemanel followed for about two houses, then entered a bakery to buy bread. While inside he heard a gunshot, ran outside, and saw Dando with the same white handkerchief covering his face firing three more shots at Cesar Castro, who was standing on the street in front of his house, after which Dando ran toward the paraan or alley in the direction of the plaza. Gemanel rushed home, told his mother what he witnessed, later confided that the shooter was Dando, and on November 22, 1991 executed a sworn statement after being fetched by police for questioning on November 21, 1991. Resident Susan Masakupan corroborated the account, testifying that about 6:00 in the evening while getting clothes from a clothesline in her front yard, she saw a man in a white polo shirt with designs and khaki pants with a handkerchief over his face stop by Castro, shoot him as he fell, fire two or more additional shots, and run toward an alley.

Police recovered three slugs and three empty shells from the crime scene on the night of November 20, 1991. Property custodian Josue Flores testified that Dando had been issued a caliber .45 Remington pistol with serial number 1945012. Central Intelligence Service member Florentino Rañada received the slugs, shells, pistol, and one .45 slug recovered from the victim's body turned over by the victim's brother Arvee Castro, and forwarded them to the PNP crime laboratory. Criminologist Susan R. Jalla certified after microscopic examination that the submitted slugs and shells revealed the same individual characteristics as test bullets and cartridges fired from Dando's service firearm. Rural Health Physician Dr. Priscilla Realeza found eleven gunshot wounds on Castro's cadaver and extracted one bullet slug.

For his part, Dando testified that he attended Millares's birthday from about 1:00 to 3:00 in the afternoon, joined a drinking spree without any gun firing, and did not bring his gun as was his habit. He claimed he went straight home, slept, awoke about midnight with an upset stomach, slept again until the morning of November 21, 1991, then ate breakfast and reported for work at 8:00. He learned only on November 22, 1991 from his wife that he was a suspect, went to the municipal building, was placed under technical arrest, and surrendered his firearm for ballistic examination. His wife Herminia Dando testified that he arrived home less than an hour after she arrived at 4:00 in the afternoon to cook supper, slept in the sala until morning, and had breakfast with her before work. The trial court credited the prosecution witnesses and convicted Dando as charged.

• Credibility of Eyewitness: Petitioner argued that the testimony of Aldwin Gemanel was marred by inconsistencies and incredible, hence unworthy of belief, particularly on who fired the gun at the birthday party, whether Dando was resting or sleeping on the tricycle, the number of shots fired at Castro, and when and to whom he first named Dando as assailant.
• Identity of Ballistic Specimens: Petitioner maintained that there was no proof that the empty shells and slugs submitted for ballistic examination were those recovered from the crime scene and the one slug from the victim's body, or that they came from his service firearm.
• Tainted Physical Evidence: Petitioner argued that the empty shells and slugs presented by the prosecution were tainted or polluted and highly unreliable because relatives of the victim had tampered with them.
• Proof Beyond Reasonable Doubt: Petitioner maintained that Gemanel's testimony together with the ballistic examination did not constitute proof beyond reasonable doubt of guilt for murder.
• Conviction and Damages: Petitioner argued that conviction for murder with sentence of reclusion perpetua and award of P1,620,000.00 for loss of earning capacity and other damages was erroneous.

• Credibility of Eyewitness: Whether full faith and credit was properly given to prosecution witness Aldwin Gemanel identifying accused-appellant as the assailant who shot Cesar Castro.
• Ballistic Evidence and Chain of Custody: Whether the empty shells and slugs submitted for ballistic examination were shown to be those recovered from the crime scene and from the victim's body and to have come from accused-appellant's service firearm.
• Tainted Evidence: Whether the physical evidence consisting of empty shells and slugs was tainted, polluted and highly unreliable.
• Sufficiency of Evidence: Whether the testimony of Gemanel and the ballistic examination constituted proof beyond reasonable doubt of guilt for murder.
• Qualification, Penalty and Civil Liability: Whether accused-appellant was properly found guilty beyond reasonable doubt of murder, sentenced to reclusion perpetua, and ordered to pay loss of earning capacity and other damages.

• Credibility of Eyewitness: No error. Gemanel's positive identification was clear, straightforward and consistent on the crux that accused-appellant gunned down Castro, with alleged variances relating only to minor details.
• Ballistic Evidence and Chain of Custody: No merit. No convincing evidence of irregularity in police handling was shown, the ballistic report is clothed with regularity, and weapons or slugs are not prerequisites for conviction.
• Tainted Evidence: No. Bare allegations of tampering by the victim's relatives, without proof, cannot render the slugs and shells unreliable.
• Sufficiency of Evidence: Yes. Positive identification corroborated by another eyewitness, supported by corpus delicti, sustains conviction despite alibi and denial.
• Qualification, Penalty and Civil Liability: Yes, as to guilt and reclusion perpetua, but civil awards modified. Treachery qualified the killing as murder; death indemnity of P50,000.00 stands, loss of earning capacity reduced to P979,000.00, funeral expenses increased to P39,974.00.

• Credibility of Eyewitness: The alleged inconsistencies were on minor and trivial matters that strengthen rather than weaken credibility by erasing suspicion of rehearsed testimony, and did not touch the consistent core that Gemanel saw accused-appellant shoot Castro. Gemanel never wavered on identification, his account was corroborated by Susana Masakupan, and the conflicting account of Millares himself varied between affidavit and court testimony on who fired at the party. At thirteen years old and shown to understand the oath, Gemanel's testimony as a child of sound mind was given full credence.
• Ballistic Evidence and Chain of Custody: Other than bare allegations, no convincing evidence of irregularity in handling by police officers was established, so the ballistic certification that the slugs and shells bore the same individual characteristics as test bullets and cartridges from the .45 Remington pistol serial number 1945012 retained the presumption of regularity. In any event, presentation of the weapon, slugs, bullets, and ballistic examination are not prerequisites for conviction where corpus delicti and positive identification are established.
• Tainted Evidence: The claim of tampering by the victim's relatives rested on assertion alone, without evidentiary support sufficient to overcome regularity and corroborated eyewitness proof, leaving the physical evidence reliable for the purposes of conviction which in any case did not depend on it alone.
• Sufficiency of Evidence: Alibi, among the weakest defenses, fails where identity is sufficiently and positively established and where the accused does not prove both presence elsewhere and physical impossibility of presence at the scene. Dando admitted his house was only about one-and-a-half kilometers from Millares's house near the shooting, rendering presence at the scene physically possible, so denial cannot prevail over Gemanel's categorical identification.
• Qualification, Penalty and Civil Liability: Treachery attended because Dando, face covered by a handkerchief, approached the unarmed victim merely standing by his gate and shot him without warning in a swift, deliberate and unexpected frontal attack affording no chance to resist or escape; evident premeditation and use of craft or disguise through lying in wait about two hours in the tricycle were likewise found. The penalty of reclusion perpetua was proper under Art. 248 as it stood at the time of the November 20, 1991 crime, Republic Act No. 7659 increasing the penalty to reclusion perpetua to death being inapplicable retroactively as unfavorable. Death indemnity of P50,000.00 requires no further proof beyond death; net earning capacity computed by life expectancy times gross annual income less living expenses yielded P979,000.00 for the 47-year-old victim with P89,000.00 gross annual income from sash factory and farming, less 50% living expenses over 22 years; proven wake and burial expenses were P39,974.00.

• Credibility — minor inconsistencies — Inconsistencies on minor and trivial matters only serve to strengthen rather than weaken credibility for they erase suspicion of rehearsed testimony; inconsequential details do not discredit positive identification on the crux of the case. Applied to sustain Gemanel despite variances on number of shots, tricycle resting versus sleeping, and details of the party firing.
• Alibi as weakest defense — Alibi must be rejected when identity is sufficiently and positively established, unless the accused proves both that he was somewhere else when the crime was committed and that it was physically impossible to have been at the scene. Applied to reject Dando's claim of sleeping at home one-and-a-half kilometers away.
• Testimony of a child witness — The testimony of a child of sound mind is likely to be more correct and truthful than that of older persons, so once it is established that he fully understood the character and nature of an oath, full credence is given. Applied to thirteen-year-old second-year high school witness Gemanel.
• Corpus delicti vs. weapon presentation — Presentation of the weapon, slugs, bullets, or ballistic examination is not a prerequisite for conviction; corpus delicti and positive identification are more than enough to sustain conviction. Applied to affirm despite attacks on chain of custody.
• Murder — treachery — The essence of treachery is an attack without warning in a swift, deliberate and unexpected manner, affording the hapless, unarmed and unsuspecting victim no chance to resist or escape; a frontal attack may still be treacherous if sudden and unexpected. Applied where the masked accused shot the unarmed victim standing by his gate.
• Damages — death indemnity and loss of earning capacity — Death indemnity of P50,000.00 is awarded without need of further proof other than death; net earning capacity equals life expectancy [2/3 multiplied by 80 minus age at death] multiplied by gross annual income minus necessary living expenses, commonly fixed at 50% of gross earnings. Applied to compute P979,000.00 from P89,000.00 gross annual income over 22 years.
• Presumption of regularity of official acts — In the absence of convincing evidence of irregularity, ballistic examination and police handling of specimens are clothed with the presumption of regularity. Applied to reject bare tampering claims in People vs. Dando.

• "inconsistencies on minor and trivial matters only serve to strengthen rather than weaken the credibility of witnesses for they erase the suspicion of rehearsed testimony." — States the controlling rule on credibility used to disregard alleged variances in Gemanel's account and sustain positive identification.
• "The essence of treachery is that the attack comes without a warning and in a swift, deliberate and unexpected manner, affording the hapless, unarmed and unsuspecting victim no chance to resist or escape." — Provides the canonical definition of treachery applied to qualify the frontal shooting as murder.
• "Alibi is one of the weakest defenses in criminal cases and it should be rejected when the identity of the accused is sufficient and positively established by the prosecution." — States the doctrine rejecting Dando's alibi in light of categorical eyewitness identification and physical possibility of presence.
• "the presentation of weapons (or the slugs and bullets, as in this case) used and ballistic examination are not prerequisites for conviction." — States the rule allowing affirmance on corpus delicti and positive identification despite chain-of-custody attacks.

• People vs. De Guia, 280 SCRA 141 (1997) — Cited as authority that minor inconsistencies strengthen rather than weaken credibility.
• People vs. Padilla, 242 SCRA 629 (1995) — Cited jointly for the same credibility rule on trivial inconsistencies.
• People vs. Salvador, 279 SCRA 164 (1997) — Cited to reject alibi where identity was positively established.
• People vs. Belo, 299 SCRA 654 (1998) — Cited for the two-pronged alibi requirement of presence elsewhere plus physical impossibility.
• Marco vs. Court of Appeals, 273 SCRA 276 (1997) — Cited for giving full credence to testimony of a child of sound mind who understands the oath.
• People vs. Florida, 214 SCRA 227 (1992) — Cited for the rule that weapon presentation and ballistic examination are not prerequisites for conviction.
• People vs. Aranjuez, 285 SCRA 466 (1998) — Cited for the essence of treachery and sudden frontal attack doctrine.
• Villa Rey Transit, Inc. vs. Court of Appeals, 31 SCRA 511 (1970) — Cited as source of the life-expectancy formula for loss of earning capacity.
• Negros Navigation Co. vs. Court of Appeals, 281 SCRA 534 (1997) — Cited among decided cases establishing the net earning capacity formula.

• Article 248, Revised Penal Code — Defines murder as killing with treachery, evident premeditation, and related circumstances, then punishable by reclusion temporal in its maximum period to death; applied to qualify Dando's treacherous shooting as murder and impose reclusion perpetua.
• Republic Act No. 7659 — Increased the penalty for murder to reclusion perpetua to death effective December 31, 1993; held inapplicable retroactively to the November 20, 1991 crime as unfavorable to the accused.

Davide, Jr., C.J., Puno, Pardo and Ynares-Santiago, JJ., concur.