11/8/2020 BOBBY “ABEL” AVELINO Y BULAWAN v.
PEOPLE
G.R. No. 181444
FIRST DIVISION
[ G.R. No. 181444, July 17, 2013 ]
BOBBY "ABEL" AVELINO Y BULAWAN, PETITIONER, VS. PEOPLE OF THE
PHILIPPINES, RESPONDENT.
DECISION
VILLARAMA, JR., J.:
[1]
On appeal are the Decision of the Court of Appeals (CA) in CA-G.R. CR-H.C. No.
02297 which affirmed petitioner's conviction for murder in Criminal Case No. 01-
[2] [3]
189130, and the CA's Resolution denying his motion for reconsideration.
Petitioner Bobby "Abel" Avelino y Bulawan, together with Ricardo Tolentino, Alias
Sonny Muslim, Farouk Musa a.k.a. Boy Muslim, Alias Bubut Tuwad, Alias Angkol,
Alias Mon, Renato Meneses a.k.a. Nato, Benjamin Elbona a.k.a. Toto Mata, and
[4]
Dominic Apan a.k.a. Domeng Bakukang, was charged with murder before the
Regional Trial Court (RTC) of Manila with the qualifying circumstances of treachery
and evident premeditation.
Upon arraignment, petitioner and his co-accused Renato Meneses, Benjamin Elbona,
and Farouk Musa entered a plea of not guilty. The other accused remain at-large.
At the trial, the prosecution presented eight witnesses: Delia Hispano, the wife of the
victim; Diana Espinosa; Alfredo Manalangsang (Manalangsang); Mary Ann Cañada
(Cañada); Renato Sosas; Dr. Romeo T. Salen; P/Insp. Mario Prado; and National
[5]
Bureau of Investigation (NBI) agent Rizaldi Jaymalin.
The facts, as culled from the CA Decision which cited the brief of the Office of the
Solicitor General, are as follows:
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Around 2:00 o'clock in the afternoon of September 2000, Renato Sosas y
Verzosa, an employee of appellant Bobby Avelino y Bulawan in his wood
business, was directed by appellant to summon Toto Mata, Nato, Domeng
Bakukang, Bobot Tuwad, Boy Muslim, Angkol, Charlie, Sonny Muslim and Mon
(TSN, January 29, 2002, pp. 5-6). An hour later, the group called by Renato
Sosas met at appellant's warehouse in Tagaytay, Baseco Compound, Tondo,
Manila. Renato Sosas, who was just a step away from the group, was astounded
when he heard appellant utter "Papatayin si Chairman." Bobot Tuwad reacted
by asking appellant "Sino pong chairman?", to which appellant Avelino replied
"Sino pa, Ninong Chairman Gener." Terrified, Sosas kept mum about what he
discovered (TSN, January 29, 2002, pp.10-12).
On October 5, 2000, around 9:00 o'clock in the evening, Alfredo Manalangsang
was riding on a tricycle going to Baseco Compound, Tondo, Manila. Since
Manalangsang was the last passenger to board the tricycle, he sat behind the
nd
driver. Upon reaching a certain point between Muelle Del Rio and 2 Street,
Port Area, Manila, the tricycle which Manalangsang was riding on passed at the
left lane instead of the right lane of the road to give way to the owner-type (sic)
jeep owned by the barangay and driven by its Chairman[,] Generoso Hispano,
herein victim (TSN, September 26, 2001, pp. 11-17, Exhs. "R-1" and "4").
While Chairman Hispano was entering the nearest route near the center island, a
man suddenly emerged and blocked Chairman Hispano's vehicle.
Instantaneously, Manalangsang heard bursts of gunshot which prompted him to
jump from the tricycle. Manalangsang instinctively hid behind the center island
of the road (TSN, September 26, 2001, pp. 17-21).
At this juncture, Manalangsang peeped at the direction of Chairman Hispano's
jeep and saw three (3) men wearing bonnets, two of whom were strategically
blocking the jeep of Chairman Hispano. The third man, who was wearing a green
jacket and positioned himself near the gutter, fired successive shots at Chairman
Hispano and thereafter approached the jeep of Chairman Hispano. He pulled
down from the jeep the almost lifeless body of Chairman Hispano. Since
Manalangsang was situated near the third assailant, he failed to identify the
other two assailants. However, Manalangsang positively identified the third
assailant as appellant Bobby "Abel" Avelino, whom he saw stooping down at the
Chairman's body and pulling the opening of his bonnet down to his chin to
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ascertain if the Chairman was still alive. Sensing that it was safe for him to leave
the scene, Manalangsang boarded a tricycle again and went home (TSN,
September 26, 2001, pp. 22-26).
Thereafter, appellant and the other assailants drove away using the owner-type
jeep of Chairman Hispano. However, on their way towards Divisoria, the jeep
was incidentally blocked by a tricycle and a white car which prompted the
companion of appellant to shout "tabi-tabi." At that moment, Mary Ann
Ca[ñ]ada saw appellant, who was wearing a green jacket and a bonnet rolled up
to his forehead, driving the owner-type (sic) jeep of Chairman Hispano. Ca[ñ]ada
readily recognized appellant as she was familiar with the face of appellant having
seen him driving the jeep of the Chairman on several occasions before (TSN,
November 19, 2001, pp. 17-28).
When the police arrived at the crime scene, Chairman Hispano was already dead.
The owner-type (sic) jeep of Chairman Hispano was recovered in front of house
No. 440, Orbiztondo Street, Binondo, Manila, with several pieces of empty shells
of 9 mm caliber gun scattered on its floor (TSN, May 7, 2003, pp. 6-7) (Rollo,
pages 120-123).[6]
Denying the accusation, the defense presented as evidence the testimonies of
petitioner, PO2 Anthony P. Galang, Adonis T. Bantiling and Scene of the Crime
[7]
Operative (SOCO) PSI Lito D. Cabamongan (Cabamongan).
Petitioner advanced the defense of denial and alibi. He testified that on October 5,
2000, he and his wife went to the Land Transportation Office in Pasay City to renew
his license as they planned to go to Baguio that day. But as he was issued a temporary
license late in the afternoon, instead of going home, he and his wife checked in at the
Pharaoh Hotel in Sta. Cruz, Manila to spend the night. He parked his car along
Dasmariñas Bridge and slept. Later, he woke up to transfer his car but his car was
gone. Thus, he and his wife went to the police station in Sta. Cruz, Manila then to the
Anti-Carnapping Unit along U.N. Avenue to report the incident. At the latter location,
they learned from a certain Tata Randy, an acquaintance and former police officer,
that the victim had been gunned down. Around 1:00 a.m., he and his wife returned to
[8]
the hotel. On October 23, 2000, he was arrested by agents of the NBI.
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After trial, the RTC, on April 28, 2006, found petitioner guilty beyond reasonable
doubt of the crime of murder qualified by treachery, and imposed upon him the
penalty of reclusion perpetua. The RTC likewise ordered him to indemnify the heirs of
the victim Generoso Hispano (Hispano) the sum of P50,000 and to pay them an
additional sum of P50,000 as moral damages, the sum of P158,471.75 as actual
damages, and costs.[9]
For failure of the prosecution to prove their guilt beyond reasonable doubt, accused
Farouk Musa, Benjamin Elbona, and Renato Meneses were acquitted of the crime
charged.[10]
As aforesaid, the CA, in its assailed decision, denied petitioner's appeal and upheld the
RTC decision with modification by increasing the award of actual damages to
P171,128.75.[11] Petitioner's motion for reconsideration was likewise denied by the
appellate court on January 25, 2008.[12]
Aggrieved, petitioner now seeks to reverse his conviction, arguing that the CA erred in
relying on the testimonies of the prosecution witnesses Manalangsang and Cañada
and disregarding the inconsistencies between the statements of Manalangsang and
the findings of the medico-legal and SOCO PSI Cabamongan as to the position of the
gunman. He also reiterated his defense of denial and alibi.
We have carefully studied the records of this case and find no cogent reason to
overturn the ruling of the CA which is in accord with law and jurisprudence.
As for the defense of the petitioner which is grounded, firstly, upon denial and alibi,
basic is the rule that the defense of denial and alibi cannot prevail over the witness'
positive identification of the accused-appellants.[13] Moreover, as oft-repeated in
jurisprudence
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For alibi to prosper, it is not enough to prove that appellant was somewhere else
when the crime was committed; he must also demonstrate that it was physically
impossible for him to have been at the scene of the crime at the time of its
commission. Unless substantiated by clear and convincing proof, such defense is
negative, self-serving, and undeserving of any weight in law. Denial, like alibi, as
an exonerating justification[,] is inherently weak and if uncorroborated regresses
to blatant impotence. Like alibi, it also constitutes self-serving negative evidence
which cannot be accorded greater evidentiary weight than the declaration of
[14]
credible witnesses who testify on affirmative matters.
In this case, the defense failed to establish that it was physically impossible for the
petitioner to have been at the scene of the crime at the time of its commission.
Pharaoh Hotel, where petitioner claims to have stayed with his wife at the time of the
commission of the crime, is in Sta. Cruz, Manila.[15] The said hotel is not so far from
the scene of the crime, which is in Baseco Compound in Tondo, Manila, so as not to
afford the petitioner an opportunity to easily go to the place of the shooting at the
time Hispano was killed. Indeed, for the defense of alibi to prosper, the accused must
prove (a) that he was present at another place at the time of the perpetration of the
crime, and (b) that it was physically impossible for him to be at the scene of the crime.
These, the defense failed to do.
The defense of the petitioner is based, secondly, on his allegations that prosecution
witnesses Manalangsang and Cañada failed to positively identify him as the gunman
who mortally wounded Hispano, and that Manalangsang's testimony as to the
locations and number of gunshot wounds, as well as the position of the gunman, is
inconsistent with the physical evidence as provided by the medico-legal officer and the
testimony of SOCO PSI Cabamongan.
These allegations cannot exculpate the petitioner from criminal liability.
Manalangsang unequivocally identified the petitioner as the gunman. Manalangsang
was able to identify the petitioner because the latter revealed his face when he pulled
down the bonnet he was wearing, thereby exposing his eyes, nose, mouth, and chin.
[16] Moreover, the certainty of Manalangsang in identifying the petitioner as the one
who shot Hispano is bolstered by the fact that he and petitioner were neighbors for
five years in Baseco.[17] The RTC cites the following statement by Manalangsang as
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an added indication of his certainty "Si Avelino, kahit ubod ng layo, kahit naglalakad
lang, kilala ko na. Dahil unang-una, matagal ko na siyang kilala, dahil ako hindi
niya ako gaanong kilala, pero sila kilala ko, kahit nakatagili[d], kilala ko siya."[18]
It cannot be denied that once a person gains familiarity of another, identification
becomes quite an easy task even from a considerable distance.[19]
Even the theory of the defense that identification of the petitioner by Manalangsang
and Cañada is unlikely due allegedly to the lack of sufficient illumination at the scene
of the crime, has been overcome by the fact that there are lampposts and signboards
in the subject area which can provide illumination despite the black of night. Indeed,
even assuming arguendo that the lampposts were not functioning at the time, the
headlights of passing vehicles provided sufficient illumination at the crime scene.[20]
"The Court has previously held that the light from the stars or the moon, an oven, or a
wick lamp or gasera can give ample illumination to enable a person to identify or
recognize another."[21] Similarly, the headlights of vehicles are sufficient to enable
eyewitnesses to identify individuals at a distance of four to ten meters,[22] and it
should be noted that the distance between Manalangsang and the jeep where Hispano
was felled was only 31 feet[23] or a little over nine meters.[24]
The identification made by Manalangsang was likewise sufficiently corroborated by
the testimony of Cañada, that she saw the petitioner, with whom she was familiar,
drive away in Hispano's owner-type jeep, wearing a green jacket and black bonnet
rolled up to his forehead.[25]
Further, as can be gleaned from the excerpt below, the petitioner's defense that
Manalangsang's testimony contradicts with the medical findings, and should then be
disregarded, must fail. Petitioner claims that Manalangsang's statements that
Hispano was shot in a downward direction conflict with the findings of the medico-
legal that the trajectory of the bullets is in an upward direction. The testimony of Dr.
Salen is pertinent and enlightening:
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Q: [T]he trajectory of the bullet is upward?
A: Yes, sir.
Q: [S]o the gunman must be at a lower level from the decease[d]?
A: We can not [sic] say that, sir.
Q: But the trajectory of the bullet is upward?
It depends on the matter of the position of the head when the head
was hit. It could be when the trajectory is upward it [sic] could be
A: lying down with his back and the gunman and the barrel of the gun is
here and if we will put the normal position of the body it is still
upward but the normal position is like that so…
Make of record that the witness is demonstrating a slightly incline
COURT:
position of the head and the body.
WITNESS:
So we can not [sic] determine the position of the gunman when it was
related [sic] the gunshot wound of the entry and the victim it will
A:
depend on the position of the gunman but likewise the position of the
victim during the infliction [sic] of the gun.
ATTY. VARGAS:
Mr. Witness[,] if the gunman is standing on an elevated floor of about
Q:
three feet do you think that the trajectory of a bullet is upward?
[26]
A: It is possible also.
Clearly, the fact that the trajectory of the bullets is in an upward direction does not
negate the veracity of Manalangsang's statement that Hispano was shot by the
gunman from an elevated plane.
The CA was also correct in not giving credence to the opinion of SOCO PSI
Cabamongan as regards the position of the gunman when the latter shot Hispano.
Cabamongan asserted that the gunman was on board the owner-type jeep when
Hispano was shot, which is opposed to Manalangsang's testimony. However, case
records reveal that Cabamongan was presented as an ordinary witness. Hence, his
opinion regarding the location of the gunman in relation to the place where the empty
shells were found is immaterial.
Expert evidence is admissible only if: (a) the matter to be testified to is one that
requires expertise, and (b) the witness has been qualified as an expert.[27] In this
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case, counsel for the petitioner failed to make the necessary qualification upon
presenting Cabamongan during trial.
Jurisprudence further provides that minor inconsistencies in immaterial details do
not destroy the probative value of the testimony of a witness regarding the very act of
the accused. The case of Madali v. People[28] elucidates thus:
Given the natural frailties of the human mind and its incapacity to assimilate all
material details of a given incident, slight inconsistencies and variances in the
declarations of a witness hardly weaken their probative value. It is well settled
that immaterial and insignificant details do not discredit a testimony
on the very material and significant point bearing on the very act of
accused-appellants. As long as the testimonies of the witnesses
corroborate one another on material points, minor inconsistencies
therein cannot destroy their credibility. Inconsistencies on minor details
do not undermine the integrity of a prosecution witness. (Emphasis and
underscoring supplied.)
Thus, the positive identification of the petitioner as the gunman by Manalangsang, as
corroborated by Cañada, must stand. Indeed, it has been consistently held by this
Court that in criminal cases the evaluation of the credibility of witnesses is addressed
to the sound discretion of the trial judge, whose conclusion thereon deserves much
weight and respect because the judge has the direct opportunity to observe said
witnesses on the stand and ascertain if they are telling the truth or not. Absent any
showing that the lower courts overlooked substantial facts and circumstances, which
if considered, would change the result of the case, this Court gives deference to the
trial court's appreciation of the facts and of the credibility of witnesses, especially
since Manalangsang and Cañada's testimony meets the test of credibility.[29] The
Court also notes that other than his claim of denial, petitioner failed to show how the
prosecution failed to overcome the presumption of innocence.
The qualifying circumstance of treachery or alevosia was additionally properly
appreciated in this case.
The two elements that must be proven to establish treachery are: (a) the employment
of means of execution which would ensure the safety of the offender from defensive
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and retaliatory acts of the victim, giving the victim no opportunity to defend himself;
and (b) the means, method and manner of execution were deliberately and
consciously adopted by the offender.[30] The two elements are present in this case.
These elements are established by the testimony of Manalangsang showing the
unexpected attack by the petitioner on the unsuspecting Hispano whose vehicle was
suddenly blocked by three men, at least one of whom was armed with a firearm.[31]
The victim was then unarmed and had no opportunity to defend himself.
Thus, considering all the above-mentioned facts, we uphold the conviction of the
petitioner for the crime of murder.
Regarding the award of damages, we affirm the trial court and CA in ordering the
petitioner to pay the heirs of Generoso Hispano the amount of P50,000 as moral
damages. In cases of murder and homicide, the award of moral damages is
mandatory, without need of allegation and proof other than the death of the victim.
[32] Similarly, the CA correctly awarded his heirs the amount of P171,128.75 as actual
damages, as said amount which was spent for funeral and burial expenses was duly
supported by receipts. However, as regards the award of civil indemnity, the same
should be increased to P75,000 to conform with recent jurisprudence.[33] Also, the
heirs of the victim are entitled to exemplary damages which recent jurisprudence pegs
at P30,000[34] considering the presence of the aggravating circumstance of
treachery. Lastly, we impose on all the monetary awards for damages interest at the
legal rate of 6% per annum from date of finality of this Decision until fully paid,
consistent with current policy.
WHEREFORE, the petition is DENIED. The October 22, 2007 Decision of the
Court of Appeals in CA-G.R. CR-H.C. No. 02297 is AFFIRMED. Petitioner BOBBY
"ABEL" AVELINO y BULAWAN is found GUILTY beyond reasonable doubt of
MURDER and is sentenced to suffer the penalty of reclusion perpetua. He is further
ordered to pay the heirs of Generoso Hispano the amounts of P171,128.75 as actual
damages, P75,000.00 as civil indemnity, P50,000.00 as moral damages, and
P30,000.00 as exemplary damages. All monetary awards for damages shall earn
interest at the legal rate of 6% per annum from date of finality of this Decision until
fully paid.
With costs against the petitioner.
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SO ORDERED.
Sereno, C.J., (Chairperson), Leonardo-De Castro, Bersamin, and Reyes, JJ., concur.
[1] Rollo, pp. 61-71. The assailed decision was promulgated on October 22, 2007 and
was penned by Associate Justice Juan Q. Enriquez, Jr. with Associate Justices Vicente
S. E. Veloso and Marlene Gonzales-Sison concurring.
[2] Id. at 42-59. Penned by Judge Teresa P. Soriaso.
[3] Id. at 74-75. The Resolution was promulgated on January 25, 2008.
[4] Id. at 62-63; records, Vol. I, p. 28.
[5] Id. at 63.
[6] Id. at 63-65.
[7] Id. at 65.
[8] Id.
[9] Id. at 59.
[10] Id.
[11] Id. at 71.
[12] Supra note 3.
[13] People v. Adviento, G.R. No. 175781, March 20, 2012, 668 SCRA 486, 499, citing
Lumanog v. People, G.R. Nos. 182555, 185123 & 187745, September 7, 2010, 630
SCRA 42, 130.
[14]
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[14] People v. Benjamin Peteluna and Abundio Binondo, G.R. No. 187048, January
23, 2013, p. 10, citing People v. Barde, G.R. No. 183094, September 22, 2010, 631
SCRA 187, 211.
[15] Rollo, p. 31.
[16] TSN, October 2, 2001, pp. 17, 20, and 38.
[17] Rollo, p. 55.
[18] TSN, October 2, 2001, pp. 30-31.
[19] People v. Magtibay, 435 Phil. 353, 369 (2002).
[20] People v. Sabalones, G.R. No. 123485, August 31, 1998, 294 SCRA 751, 789.
[21] Id.
[22] Id.
[23] TSN, October 25, 2001, p. 15.
[24] One foot is equivalent to 0.3048 meter.
[25] TSN, November 19, 2001, pp. 22-23, 27-28.
[26] TSN, March 4, 2002, pp. 31-32.
[27] F.D. Regalado, Remedial Law Compendium, Vol. II, 2004 edition, p. 760.
[28] G.R. No. 180380, August 4, 2009, 595 SCRA 274, 294.
[29] See People v. Obina, G.R. No. 186540, April 14, 2010, 618 SCRA 276, 280-281.
[30] People v. Gonzales, G.R. No. 195534, June 13, 2012, 672 SCRA 590, 600, citing
People v. Malabago, 333 Phil. 20, 34 (1996).
[31]
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[31] TSN, October 2, 2001, p. 11.
[32] People v. Laog, G.R. No. 178321, October 5, 2011, 658 SCRA 654, 683, citing
People v. Domingo, G.R. No. 184343, March 2, 2009, 580 SCRA 436, 457.
[33] Id., citing People v. Nazareno, G.R. No. 180915, August 9, 2010, 627 SCRA 383,
393.
[34] People v. Malicdem, G.R. No. 184601, November 12, 2012, 685 SCRA 193, 207.
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