J.A.B. Bulao & Associates

CASE 2012-0032: NORKIS DISTRIBUTORS, INC.  AND ALEX D. BUAT VS.  DELFIN S. DESCALLAR (G.R. NO. 185255, MARCH 14, 2012, VILLARAMA, JR., J.) SUBJECT/S: FAILURE TO MEET QUOTA NOT BASIS FOR LOSS OF TRUST; TWO RELIEFS OF AN ILLEGALLY DISMISSED EMPLOYEE: BACK WAGES AND REINSTATEMENT. (BRIEF TITLE: NORKIS VS. BUAT)

================

DISPOSITIVE:

          WHEREFORE, the petition for review on certiorari is DENIED.  The Decision dated March 31, 2008 and the Resolution dated October 24, 2008 of the Court of Appeals in CA-G.R. SP No. 00363 are AFFIRMED.

          Costs against petitioners.

SO ORDERED.

================

FIRST DIVISION

x- – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – -x

DECISION

VILLARAMA, JR., J.:

Before us is a petition for review on certiorari assailing the March 31, 2008Decision^[1][1] and October 24, 2008 Resolution^[2][2] of the Court of Appeals (CA) in CA-G.R. SP No. 00363.  The CA had set aside the Resolution^[3][3] of the National Labor Relations Commission (NLRC) and reinstated the decision of the Labor Arbiter holding petitioners liable for illegally dismissing respondent.

The facts are as follows.

OnApril 26, 1993, respondent Delfin S. Descallar was assigned at the Iligan City Branch of petitioner Norkis Distributors, Inc., a distributor of Yamaha motorcycles.  He became a regular employee onFebruary 1, 1994and was promoted as Branch Manager onJune 30, 1997.  He acted as branch administrator and had supervision and control of all the employees. Respondent was also responsible for sales and collection.  

In a memorandum dated June 20, 2002, petitioners required respondent to explain in writing within forty-eight (48) hours why he should not be penalized or terminated for being absent without official leave (AWOL) or rendering under-time service on certain dates from April 3, 2002 to June 11, 2002.^[4][4]  On June 21, 2002, respondent submitted his written explanation wherein he stated that he reported to the office on those dates, but he either went to the bank or followed-up on prospects.  As he was still within city limits, he did not file any official leave or travel record.  He added that on June 11, 2002, he was at the pier pulling out ten units of MC stocks.^[5][5]   

          On July 5, 2002, Norkis conducted an investigation through Mr. Edmund Y. Pingkian.  Finding that respondent was not able to prove that he was really in the branch or on official travel, petitioners suspended him for fifteen (15) days without pay beginning July 8, 2002.  According to petitioners, respondent admitted during the investigation that he used company time for his personal affairs, but only for a few hours and not the whole day.^[6][6]  

          While respondent was still serving his suspension, the Internal Auditor of the company made a random operational review and audit of the Iligan City Branch.  Several findings against respondent were noted by the auditor, to wit:

1. Refusal to accept redemption payment from customer Gamboa on their deposited motorcycle unit and unauthorized use of said deposited motorcycle unit;
2. Requiring customer Amy Pastor to pay an amount in excess of her account balance;
3. Disbursement of sales commissions to unauthorized persons;
4. Application of sales commission on the down payments of several walk-in customers.^[7][7]

On July 20, 2002, petitioners asked respondent to explain the findings against him within four (4) hours from receipt of notice.  Respondent found the time given to be cruel but nevertheless submitted his written explanation on the same day.^[8][8]

Later, respondent and Branch Control Officer Rosanna Lanzador received a memorandum dated July 23, 2002, informing them that during a cash count conducted on July 12, 2002, ashortage of P800 in the company’s TNT fund was discovered.  Likewise, an irregularity was found in the disbursement of sales commissions amounting to P1,700.  These amounts were charged equally to the accounts of respondent and Lanzador.^[9][9]  

Thereafter, in another memorandum dated July 25, 2002, respondent was placed under preventive suspension for fifteen (15) working days without pay.^[10][10] 

OnAugust 12, 2002, petitioners issued a “Notice to Show Cause” to respondent.  The notice reads:

x x x x

It has been reported that during the audit of your branch last July 2002, serious adverse findings were noted against you as follows:

a)      Refusal to accept redemption payment made by customer Gamboa on their deposited motorcycle unit which was traced later sold to one Marvin Joseph Gealon allegedly your nephew;

b)      Unauthorized use of deposited motorcycle unit owned by Ludy Gamboa;

c)      Requiring customer Amy Pastor to pay excessive amount over her account balance;

d)      Disbursement of sales commissions to unauthorized persons;

e)      Doing personal business of selling safety helmets using the facility of the branch.

Further, it is so disappointing to note that despite management support and cooperation, your branch performance continuously failed to reach to an acceptable level as illustrated below:

Please take note that adverse audit findings above coupled with inefficiency are sufficient grounds for termination.  In this light therefore, you are commanded to explain in writing within 24 hours upon receipt of this notice to show cause why you will not be terminated from your service with the company.  Failure on your part to response shall be construed as waiver of your right to be heard.

x x x x^[11][11]

On August 21, 2002, petitioners terminated respondent’s services for loss of trust and confidence and gross inefficiency.^[12][12]

     Aggrieved, respondent filed a complaint for illegal suspension and illegal dismissal before the Sub-Regional Arbitration Branch X inIliganCity.

     On March 14, 2003, Labor Arbiter Quintin B. Cueto III rendered a Decision,^[13][13] finding respondent to have been illegally dismissed.  The dispositive portion of the Labor Arbiter’s decision reads:

      WHEREFORE, in the light of all the foregoing, judgment is hereby rendered declaring the termination of complainant Delfin Descallar to be illegal and respondent NORKIS Distributor, Inc. is ordered to pay complainant separation pay equivalent to one (1) month for every year of service plus backwages from the time he was illegally suspended until the promulgation of this decision computed as follows:

      Unpaid Wages:

           July 1-6, 2002

           July 24, 2002

           Aug. 13-22, 2002

                  P8,773.00/mo. @ 17days ———————-          P  5,736.19

      Backwages:

           July 8, 2002toJuly 23, 2002

           July 25, 2002toAug. 10, 2002

           Aug. 11, 2002toMarch 10, 2003

                  P8,773 x 8 mos. ———————————        P70,184.00

      13^th Month Pay:

                  P70,184.00 + P5,736.19 x 1/12 ————–             P  6,326.68

      Separation Pay (April 26, 1993 – March 10, 2003)

                  P8,773 x 10 yrs. ——————————–  P 87,730.00

      Or in the total amount of P169,976.87.

      Respondent is likewise ordered to pay ten (10%) percent of the total award representing attorney’s fees.

      Other claims are hereby ordered dismissed for lack of merit.

      SO ORDERED.^[14][14]

Not satisfied, petitioners appealed to the NLRC.  In a Resolution^[15][15] datedNovember 30, 2004 the NLRC reversed the Labor Arbiter’s decision and found respondent to have been validly dismissed. The NLRC, however, upheld the Labor Arbiter’s finding that petitioners are liable to respondent for unpaid wages.  The NLRC held:

WHEREFORE, foregoing considered, the questioned decision is MODIFIED in favor of the finding that complainant was validly suspended, thence, dismissed for just cause and after due process.  Accordingly, he is not entitled to awards of back wages, separation pay and even 13^th month pay.  Respondent is only ordered to pay the complainant the unpaid wages as stated above in the amount of P5,736.19.

SO ORDERED.^[16][16]

          Respondent’s motion for reconsideration having been denied, he filed with the CA a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended.

          In a Decision datedMarch 31, 2008, the appellate court reinstated with modification the decision of the Labor Arbiter, to wit:

          WHEREFORE, the assailed Resolution datedNovember 30, 2004of public respondent is hereby SET ASIDE.  The Decision of the Labor Arbiter is hereby REINSTATED with the MODIFICATION that the following be DELETED:

1.  The award of 13^th month pay.

      2.   The award of backwages for the periodJuly 8, 2002toJuly 23, 2002.

All other awards in the Decision of the Labor Arbiter are affirmed.

SO ORDERED.^[17][17]

Respondent filed a motion for clarification as to the awards of separation pay and back wages while petitioners filed a motion for reconsideration. 

On October 24, 2008, the CA issued a Resolution stating that as regards respondent’s motion for clarification, the separation pay and back wages shall be reckoned from the time respondent was illegally suspended until finality of the March 31, 2008 Decision.  The CA likewise denied petitioners’ motion for reconsideration in the same resolution. 

Hence, petitioners filed the present petition. 

Essentially, petitioners argue that the CA gravely erred in not giving weight to the affidavits and sworn certifications of their witnesses, and in finding that they relied entirely on the affidavits of their witnesses in terminating respondent.  Likewise, petitioners claim that the CA committed grave error in holding that the failure of respondent to reach his monthly sales quota is not a valid basis for loss of trust and confidence.

On the other hand, respondent points out that the issues raised in this petition are factual as they are solely focused on the probative value of the affidavits of petitioners’ witnesses.  He contends that questions of fact cannot be raised in this mode of appeal considering that the Supreme Court is not a trier of facts.  Thus, respondent submits that the instant petition deserves outright denial.

We dismiss the petition for lack of merit. 

Loss of trust and confidence as a ground for termination of an employee under Article 282^[18][18] of the Labor Code requires that the breach of trust be willful, meaning it must be done intentionally, knowingly, and purposely, without justifiable excuse.^[19][19]  The basic premise for dismissal on the ground of loss of confidence is that the employees concerned holds a position of trust and confidence.  It is the breach of this trust that results in the employer’s loss of confidence in the employee. 

Here, there is no question that as petitioners’ Branch Manager inIliganCity, respondent was holding a position of trust and confidence.  He was responsible for the administration of the branch, and exercised supervision and control over all the employees.  He was also incharge of sales and collection. 

Now, petitioners terminated his employment on the ground of loss of trust and confidence for supposedly committing acts inimical to the company’s interests. However, in termination cases, the burden of proof rests upon the employer to show that the dismissal is for a just and valid cause and failure to do so would necessarily mean that the dismissal was illegal.^[20][20]  The employer’s case succeeds or fails on the strength of its evidence and not on the weakness of the employee’s defense. If doubt exists between the evidence presented by the employer and the employee, the scales of justice must be tilted in favor of the latter.  Moreover, the quantum of proof required in determining the legality of an employee’s dismissal is only substantial evidence or such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if other minds, equally reasonable, might conceivably opine otherwise.^[21][21]  Thus, it is incumbent upon petitioners to prove by substantial evidence that valid grounds exist for terminating respondent’s employment on the ground of loss of trust and confidence.  However, our review of the records of this case reveals that the CA correctly held that petitioners failed to discharge this burden. 

In terminating respondent’s services, petitioners relied on several grounds.  First, petitioners relied on the affidavit of customer Ludy Gamboa.  In her affidavit, Ludy Gamboa accused respondent of refusing to accept payment of P7,000 to redeem a motorcycle unit sometime on May 21-23, 2001.^[22][22]  However, respondent was able to prove by submitting the Monthly Inventory Report^[23][23] that the motorcycle unit had already been repossessed by the company due to Gamboa’s failure to settle her account.  Respondent’s refusal to receive the partial payment was therefore undeniably justified.  And the motorcycle already having been repossessed, it could also be sold to any person who might like to buy it including respondent’s nephew.

Second, petitioners also allege that respondent charged customer Amy Pastor an excessive amount.  In her affidavit, Pastor claimed that sometime on January 2002, respondent required her to pay the amount of P5,566, while her outstanding balance was only P378.^[24][24]  However, a closer look at the audit report conducted by the internal auditor of petitioner Norkis, Joelito L. Florenosos, would show that there was no over-collection.^[25][25]  Said exculpatory finding was also made after the internal auditor noted that the official receipt respondent issued to cover the said collection showed no such over-collection.  Why petitioners chose to believe Pastor’s affidavit over the findings of its own internal auditor which was duly supported by documentary evidence is perplexing.

Third, petitioners accuse respondent of giving unauthorized commissions to Mr. Gary Bellen.  Respondent however asserted, and petitioners did not rebut, that Bellen is a legitimate Personalized Sales Representative of Norkis Distributors, as evidenced by the contract they signed.^[26][26]  Respondent also explained, and petitioners again did not rebut, that Bellen tutored the staff in computer programming and operation free of charge, on the condition that he may entertain customers and receive commissions.  Clearly, therefore, the arrangement made with Bellen was even beneficial to the company.  Hence, in giving commissions to Bellen, as sales representative, it cannot be said that respondent willfully breached petitioners’ trust and confidence in him.

Fourth, petitioners argue that respondent’s failure to reach his monthly sales quota is a valid basis for loss of trust and confidence.  In his explanation, respondent asserted that certain factors were to be considered for the low sales performance in their branch such as the existence of other competitors which offered low down payments, low monthly installments, and other promotional items.  Respondent also emphasized that the customers’ capacity to pay had been affected by the financial crisis at the time, thus making it more difficult to collect from them. 

To our mind, the failure to reach the monthly sales quota cannot be considered an intentional and unjustified act of respondent amounting to a willful breach of trust on his part that would call for his termination based on loss of confidence.  This is simply not the willful breach of trust and confidence contemplated in Article 282(c) of the Labor Code.  Indeed, the low sales performance could be attributed to several factors which are beyond respondent’s control.  To be a valid ground for an employee’s dismissal, loss of trust and confidence must be based on a willful breach.^[27][27]  To repeat, a breach is willful if it is done intentionally, knowingly and purposely, without justifiable excuse.^[28][28] 

Petitioners having failed to establish by substantial evidence any valid ground for terminating respondent’s services, we uphold the finding of the Labor Arbiter and the CA that respondent was illegally dismissed.

But did the CA award correct reliefs to respondent? We likewise rule in the affirmative.

An illegally dismissed employee is entitled to two reliefs: back wages and reinstatement. The two reliefs provided are separate and distinct. In instances where reinstatement is no longer feasible because of strained relations between the employee and the employer, separation pay is granted. In effect, an illegally dismissed employee is entitled to either reinstatement if such is viable, or separation pay if reinstatement is no longer viable, and to back wages.

The normal consequences of respondent’s illegal dismissal, then, are reinstatement without loss of seniority rights, and payment of back wages computed from the time compensation was withheld from him up to the date of actual reinstatement. Where reinstatement is no longer viable as an option, separation pay equivalent to one month salary for every year of service should be awarded as an alternative. The payment of separation pay is in addition to payment of back wages.^[29][29]

Petitioners question the CA Resolution dated October 24, 2008, arguing that it modified its March 31, 2008Decision which has already attained finality insofar as respondent is concerned.  Petitioners point out that the October 24, 2008 CA Resolution clarified that the payment of separation pay and back wages shall be reckoned from the time respondent was illegally suspended until finality of the March 31, 2008 CA Decision.  But petitioners point out that when the Labor Arbiter declared that the payment of back wages shall be “until the promulgation of this Decision,” he was referring to his own Decision promulgated onMarch 14, 2003.

We do not agree.

Such contention is misplaced.  The CA merely clarified the period of payment of back wages and separation pay up to the finality of its decision (March 31, 2008) modifying the Labor Arbiter’s decision. In view of the modification of monetary awards in the Labor Arbiter’s decision, the time frame for the payment of back wages and separation pay is accordingly modified to the finality of the CA decision.  The clarification thus made on motion of the respondent was not an amendment of the March 31, 2008 Decision.  Even assuming that the CA indeed corrected or amended the dispositive portion of its decision, it is well within its appellate jurisdiction to treat respondent’s motion for clarification as a partial motion for reconsideration^[30][30] insofar only as to declare until when the payment of such back wages and separation pay shall be made.

          WHEREFORE, the petition for review on certiorari is DENIED.  The Decision dated March 31, 2008 and the Resolution dated October 24, 2008 of the Court of Appeals in CA-G.R. SP No. 00363 are AFFIRMED.

          Costs against petitioners.

SO ORDERED.

C E R T I F I C A T I O N

          Pursuant to Section 13, Article VIII of the 1987 Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

CASE 2012-0031: PEOPLE OF THE PHILIPPINES VS. EDUARDO CASTRO Y PERALTA AND RENERIO DELOS REYES Y BONUS (G.R. NO. 187073, MARCH 14, 2012, VILLARAMA, JR., J) SUBJECT/S: ROBBERY WITH HOMICIDE; CONSPIRACY; ALIBI; TEMPERATE DAMAGES. (BRIEF TITLE: PEOPLE VS. CASTRO)

===================

DISPOSITIVE:

WHEREFORE, the appeal is DISMISSED.  The August 28, 2008 Court of Appeals’ Decision in CA-G.R. CR-H.C. No. 02928 finding appellants Eduardo Castro y Peralta and Renerio Delos Reyes y Bonus guilty is AFFIRMED with MODIFICATION that appellants further pay the heirs of Ricardo Pacheco Benedicto P25,000 as temperate damages.

With costs against appellants.

SO ORDERED.

===================

               FIRST DIVISION

x- – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – -x

               DECISION

VILLARAMA, JR., J.:

On appeal is the August 28, 2008Decision^[1][1] of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 02928.  The CA had affirmed the Decision^[2][2] of the Regional Trial Court (RTC) Branch 128, ofCaloocanCity finding the appellants guilty of the crime of robbery with homicide. 

Appellants, together with Larry San Felipe Perito (Perito) and one alias Leng-leng, were charged with the crime of robbery with homicide under the following Information:

That  on or about the 9^th day of September 2002[,] in Caloocan City, Metro Manila and within the jurisdiction of this Honorable Court, the said accused confederating together and mutually aiding each other, with intent of gain, and armed with guns, by means of force and violence upon one RICARDO PACHECO BENEDICTO, forcibly [took] and [carried] away the amount of more or less P100,000.00, and in the course of the commission of ROBBERY, [shot] and kill[ed] Ricardo Pacheco Benedi[c]to which caused  the latter’s immediate death.

CONTRARY TO LAW.^[3][3]

On arraignment, both appellants, with the assistance of the Public Attorney’s Office (PAO), entered a plea of not guilty.  Trial ensued without the presence of the other two accused, Perito and alias Leng-leng who remained at large.

As summarized by the CA, the factual antecedents of the case are as follows:

On 9 September 2002, [around] seven o’clock in the evening, [the] victim Ricardo Pacheco Benedicto (“Benedicto”), a merchant and owner of a store selling bakery supplies and pastries in Bagong Silang, Caloocan City, was tending his store along with his helpers, one of whom was Emily Austria (“Austria”), when four (4) armed men entered the store and announced a hold-up.  Two (2) of the armed men proceeded to the table of Benedicto asking the latter to bring out his gun.  One (1) of the armed men stayed outside the store while the other one (1) guardedAustria.  Since Benedicto resisted the assault, a commotion ensued prompting the armed man guardingAustriaand the lookout stationed outside the store to join and help their other companions.  Taking advantage of said commotion,Austriaran outside the store and crossed the street.  Immediately after crossing the street,Austriaheard three (3) gunshots and saw the four (4) assailants walking out of the store, one of them carrying Benedicto’s belt bag.

Austriathen returned to the store and saw Benedicto lying in a pool of blood.   She immediately sought the help of their neighbors and the Barangay Captain, who responded to the scene, and summoned the police authorities.  When the police officers arrived at the store, they checked the body of Benedicto.  Sadly though, Benedicto was already dead.

Consequently, the police officers conducted an investigation… [and] gathered that one of the assailants was herein accused-appellant Eduardo Castro (“Appellant Castro”).  Follow-up and surveillance operations were…conducted leading to the apprehension of appellant Castro at about9:15in the evening of10 September 2002. Austriaalong with her co-helpers, May Villanueva and Aldryn Sartyn, identified appellant Castro from the line-up as one of the two (2) assailants who approached the table of Benedicto.  On the other hand, accused-appellant Renerio Delos Reyes (“Appellant Delos Reyes”) was likewise identified as one of the assailants, particularly as the one who guardedAustriaduring the incident.  The other assailants were later identified as Larry San Felipe Perito (“Perito”) and a certain alias Leng-leng (“Leng-leng”).

x x x x

During the trial, the prosecution presented the testimonies of (1) Police Senior Inspector Filemon C. Porciuncula, Jr. (“Police Senior Inspector Porciuncula”), the Medico Legal of the Northern Police District (NPD) Crime Laboratory (Caloocan City Police Station), (2) Austria and (3) Virginia F. Benedicto, the surviving spouse of Benedicto.

Police Senior Inspector Porciuncula testified that upon written request, an autopsy was conducted on Benedicto’s cadaver and that such examination showed two (2) gunshot wounds at the back of the victim’s head and the neck region.  The results also showed external injuries on the body, two (2) hematomas on the upper and lower lips and two (2) abrasions on the right thigh.  He also confirmed that the cause of death of the victim was hemorrhagic shock secondary to said gunshot wounds.

Witness Austria, in her testimony, narrated the sequence of events that transpired during the incident.  She confirmed that she had recognized the appellants as among the armed men who robbed the store and killed her employer and that she had later been informed by the policemen that their names were Eduardo Castro and Renerio Delos Reyes.  She identified appellant Castro as the one who approached the table of the victim while appellant Delos Reyes was the one who guarded her.  She testified that appellant Delos Reyes said, “HOLD UP ITO, DAPA”, while holding a gun.  Thereafter, they heard appellant Castro shouting that Benedicto was resisting.  Appellant Delos Reyes and the other assailant then ran towards the table of the victim and at that juncture, she had run outside the store.  Afterwards, she heard three (3) gun shots.

Continuing with her testimony,Austriatestified that she saw the armed men walking outside the store and that she noticed appellant Delos Reyes carrying the belt bag belonging to Benedicto.  She further testified that when she went back to the store, she saw the bloodied body of her employer on the floor.  She sought help from the neighbors, and the barangay captain of their place responded.

Witness Virginia Benedicto, wife of the victim, testified on how she had learned of the events that transpired on the fateful day of9 September 2002.  She was only able to see her husband the following day when he was already inside the casket.  She was invited to the police station for her to see appellant Castro, one of the suspects apprehended by the police officers.  She further testified that the proceeds of the sale of the store on that day, which amounted to, more or less, One Hundred Thousand Pesos (P100,000.00) had been taken by the robbers.

The testimony of Police Officer 3 Leonilo Padulaga, who attested to the conduct of the investigation and the execution of affidavits by witnesses in connection with this case, was stipulated upon by the prosecution and the defense.  The prosecution also offered the sworn statements of May Villanueva and Aldryn Sartyn, as well as the Police Transmittal as documentary evidence.

On the other hand, aside from the separate testimonies of the appellants, the defense also presented the testimonies of Alejo Castillo (“Castillo”) and Francisco Beltran (“Beltran”), both neighbors of appellant Castro.

Witness Castillo testified that he was at their outpost on the day of the incident, at around6:30 o’clockin the evening, as he was a Purok leader at that time.  He was preparing for their usual roving activities and was making entries in the blotter notebook when appellant Castro, known to him as Edong, approached them and conversed with them until8:00 o’clockin the evening.  During that time, he noticed that three (3) persons carrying bags walked past the outpost, who even told him that they would be having a long vacation.  He recognized the accused Perito, the brother-in-law of appellant Castro, and Leng-leng as two (2) of the said three (3) persons.  Thereafter, some persons arrived at the outpost and informed them that there was a killing incident in the market.

Witness Beltran, in his testimony, corroborated, in essence, the account given by witness Castillo on what transpired on the day of the crime.  On cross-examination, he testified that he had found it unusual that appellant Castro did not utter a word when his brother-in–law Perito and co-accused Leng-leng walked past the outpost telling them that they were headed for a long vacation.  He also stated that the distance between the barangay outpost and the scene of the crime would only take five (5) to seven (7) minutes commute if one takes a tricycle ride.

Denying any involvement or participation in the robbery and killing in this case, appellant Delos Reyes claimed that prior to the commission of said crime, he did not know appellant Castro, co-accused Perito or even the victim Benedicto.  Posing an alibi as a defense, he claimed that on 9 September 2002, at around 6:30 in the evening, he was inside the house of his in-laws at Phase 8-B, Package 4, Lot 1416, Bagong Silang, Caloocan City, where he had been staying since July 2002.  He admitted that he was a tricycle driver plying the route covering all phases of Bagong Silang and that from the scene of the crime, it would only take an eight (8) minute tricycle ride for him to reach his in-laws’ house.  He further admitted that he had been arrested in connection with this crime only after he had been arrested for another murder case.

Appellant Castro, in turn, testified that while co-accused Perito is his brother-in-law, he did not know appellant Delos Reyes and that he had only heard of the name Leng-leng since the latter is a friend of Perito.  He also claimed that he did not know the victim Benedicto.  He asserted that, as narrated by witnesses Castillo and Beltran, he was at the barangay outpost at the time of the commission of the crime.  He arrived thereat before6:00 o’clockin the evening and left at around8:00 o’clockin the evening.  He also testified that they had noticed Perito and three (3) or four (4) companions walk past the outpost and when asked, Perito had retorted, “DITO LANG PO PUROK, I will just have a vacation.”  After 15 minutes, a neighbor informed Castillo that there had been a killing incident in the market.

Appellant Castro further narrated that between11:00 to 12:00 o’clockin the evening of the same day, while he was sleeping, he had heard a commotion outside his house as police officers arrived at the house of Perito, which was only two (2) houses away from his place.  The following day, some police officers went to his house and inquired as to the whereabouts of Perito.  Since he could not answer the inquiries of the police officers, he was brought to and detained at the police precinct.  During his detention, the private complainant and the witnesses, includingAustria, identified him as one of the armed men who had robbed the store of Benedicto.  On cross-examination, he admitted that he also stands as a co-accused of appellant Delos Reyes in another pending robbery case.

x x x x^[4][4]

The RTC found appellants guilty of the offense charged and imposed on them the penalty of reclusion perpetua.  The RTC held that all the evidence pointed to the appellants as the perpetrators of the crime, and the existence of conspiracy was sufficiently alleged and proven during trial.  The appellants acted in concert at the time of the robbery towards the same purpose or design.  And the rule is that whenever a homicide is committed as a consequence or on the occasion of a robbery, all those who took part as principals in the robbery would also be held guilty as principals of the special complex crime of robbery with homicide.  Therefore, it was of no moment that none of the prosecution witnesses saw who actually shot the victim to death.

As regards appellants’ defense of alibi, the RTC held that their alibi cannot prosper since both admitted that they were just a few minutes away from the scene of the crime; thus, it was not physically impossible for them to be at the scene of the crime.  Also, the RTC cited thatAustriapositively identified appellants as two of the four assailants. Such positive identification prevails over the negative and self-serving denials of the appellants, added the RTC.

On appeal, the CA affirmed the decision of the RTC. The CA did not give credence to appellants attempt to assailAustria’s testimony.  The appellate court held that it is well settled that positive identification, where categorical, consistent and not attended by any showing of ill motive on the part of the eyewitnesses, prevails over alibi and denial, particularly where the appellant had not shown the physical impossibility of his access to the victim at the time and place of the crime, as in this case, where both appellants admitted being only five to eight minutes from the scene of the crime.  The CA added that even ifAustriadid not know appellants’ names prior to the incident, she was able to identify them by their faces during the police line-up and in open court.  Appellants’ denial therefore cannot prevail over the positive declaration of the prosecution’s witness, the CA concluded.

Aggrieved, appellants elevated the case to this Court.^[5][5]       

We have carefully reviewed the evidence in this case and the parties’ submissions and find no showing of any errors in law and in findings of fact by the courts a quo.  It has been consistently held that in criminal cases the evaluation of the credibility of witnesses is addressed to the sound discretion of the trial judge.  The rule finds an even more stringent application where said findings are sustained by the CA.^[6][6]  Everything considered, there is no doubt in our mind that the positive identification of herein appellants byAustria is credible and sufficient for conviction.

Appellants and their co-accused killed the victim in the course of the robbery.  As such, contrary to appellants’ contentions, the exact identity of the one who actually shot Benedicto and took the bag from him is not material.  The appellants are liable for the special complex crime of robbery with homicide since the existence of conspiracy among them in the commission of the robbery makes the act of one the act of all.  All those who took part in the robbery are liable as principals even though they did not actually take part in the killing.  Case law establishes that whenever homicide has been committed by reason of or on the occasion of the robbery, all those who took part as principals in the robbery will also be held guilty as principals of robbery with homicide although they did not take part in the homicide, unless it appears that they sought to prevent the killing.^[7][7]

Here, evidence shows that appellants and their two co-accused entered the store and declared a robbery. Austriapositively identified appellant Castro as one of the two assailants who proceeded to Benedicto’s table and asked him to give them his gun, while appellant Delos Reyes, who declared the robbery, guarded her and the other store helpers as the fourth assailant served as the lookout. Austriatestified that she was able to escape and that she heard three gunshots immediately after crossing the street opposite the store.  She also saw the assailants leaving the store with Benedicto’s bag.

Taken together, the appellants’ actions proved beyond reasonable doubt that they acted in concert to attain a common purpose.  The evidence does not show that any of the appellants sought to avert the killing of Benedicto.  In People v. Ebet,^[8][8]we ruled that once conspiracy is shown, the act of one is the act of all.  The precise extent or modality of participation of each of them becomes secondary, since all the conspirators are principals.     

We concur with the trial and appellate courts in rejecting appellants’ defenses of denial and alibi.  Time and again this Court has ruled that alibi is the weakest of all defenses, for it is easy to fabricate and difficult to prove; it cannot prevail over the positive identification of the accused by the witnesses.^[9][9]  Moreover, for the defense of alibi to prosper, the requirements of time and place must be strictly met. It is not enough to prove that the accused was somewhere else when the crime was committed, but he must also demonstrate by clear and convincing evidence that it was physically impossible for him to have been at the scene of the crime at the time the same was committed.^[10][10]   Such physical impossibility was not shown to have existed in this case where appellants’ testimonies confirmed they were in the same locality (Bagong Silang) when the robbery-killing took place.

As to the award of damages, we sustain the award made by the CA as the amounts are correct and in accordance with law for in robbery with homicide, civil indemnity and moral damages in the amount of P50,000 each is granted automatically in the absence of any qualifying aggravating circumstances.^[11][11]   However, an award of P25,000 for temperate damages may be allowed under Article 2224^[12][12] of the Civil Code, since the victim’s family undeniably incurred expenses in his burial.^[13][13]

WHEREFORE, the appeal is DISMISSED.  The August 28, 2008 Court of Appeals’ Decision in CA-G.R. CR-H.C. No. 02928 finding appellants Eduardo Castro y Peralta and Renerio Delos Reyes y Bonus guilty is AFFIRMED with MODIFICATION that appellants further pay the heirs of Ricardo Pacheco Benedicto P25,000 as temperate damages.

With costs against appellants.

SO ORDERED.

C E R T I F I C A T I O N

          Pursuant to Section 13, Article VIII of the 1987 Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.