SECOND DIVISION

[G.R. No. 239032. June 17, 2019.]

PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs. GILBERT

FLORESTA y SELENCIO , accused-appellant.

DECISION

PERLAS-BERNABE , J : p

Before the Court is an ordinary appeal 1 led by accused-appellant Gilbert

Floresta y Selencio (Gilbert) assailing the Decision 2 dated April 21, 2017 of the Court
of Appeals (CA) in CA-G.R. CR H.C. No. 08103, which a rmed with modi cations the
Decision 3 dated November 23, 2015 of the Regional Trial Court of Masbate City,
Branch 44 (RTC) in Criminal Case No. 15733 nding Gilbert guilty beyond reasonable
doubt of the crime of Murder, de ned and penalized under Article 248 of the Revised
Penal Code (RPC).
The Facts
This case stemmed from an Information 4 led before the RTC, charging Gilbert
of the crime of Murder, the accusatory portion of which reads:
That on or about the 28th day of December, 2012, in the evening thereof,
at Sitio Calumpang, Brgy. Malinta, Masbate City, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, with intent to kill,
treachery and evident premeditation, did then and there willfully, unlawfully and
feloniously attack, assault and shoot one JAY LOURD BONES y ZURBITO, with
the use of a rearm of an unknown caliber, hitting him on the left upper chest,
thereby in icting upon him mortal wounds which were the direct cause of his
death.
CONTRARY TO LAW. 5
The prosecution alleged that at around 8:00 in the evening of December 28,
2012, Jay Lourd Bones y Zurbito (Jay Lourd) was having a drinking session with his
friend Allan Andaya (Allan) and a certain Benjie at the kitchen of his house. After
drinking two (2) shots of gin, Jay Lourd suddenly stood up and said to Allan, "Pare, I
was hit, may tama ako." As Allan was about to hug Jay Lourd, he heard a cracking sound
behind him, causing him to run away. Meanwhile, Jay Lourd's wife, Jennifer Bones
(Jennifer), was breastfeeding their youngest child when she heard the gunshot coming
from the kitchen. She hurriedly went to the kitchen and saw Jay Lourd bloodied on the
oor, prompting her to cover his wound with a piece of cloth. At that moment, he told
her, "Panggay, you see if Gilbert is still there?" Subsequently, she hid in a room with her
elder child until her uncle and sister-in-law arrived to bring Jay Lourd to the hospital. She
then decided to stay behind and wait for the police o cers to arrive. However, when
they informed her that they would continue the investigation the following day, she
proceeded to the hospital where she was informed that Jay Lourd was already dead.
Thereafter, she went to the Masbate City Police Station to tell the authorities that it was
Gilbert who shot Jay Lourd. Consequently, Gilbert was apprehended by the police. 6
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 For his part, Gilbert interposed the defense of alibi, alleging that from 12:30 until
3:00 in the afternoon of December 28, 2012, he was watching a cock ght in Purok
Casili, Barangay Igang, Masbate City. Afterwards, he proceeded to play cara y cruz with
Rico Adovas (Rico), Rely 7 Dinglasan (Rely), Soy Tugbo, and Linkoy Lorenzo until 9:00 in
the evening. Subsequently, he went back to Barangay Malinta and saw a crowd near the
house of Jay Lourd. Upon asking the people what happened, he learned that Jay Lourd
was shot to death. Thereafter, he went home and had dinner. After having dinner, the
police o cers arrived at his house, and then, he was investigated, examined, and
detained. During trial, Gilbert's averments were corroborated by the testimonies of Rico
and Rely. 8
The RTC Ruling
In a Decision 9 dated November 23, 2015, the RTC found Gilbert guilty beyond
reasonable doubt of the crime of Murder, and accordingly, sentenced him to suffer the
penalty of reclusion perpetua and to pay the heirs of Jay Lourd the amounts of
P50,000.00 as civil indemnity and P50,000.00 as moral damages. 1 0 It rejected
Gilbert's claim that the declaration made by Jay Lourd to Jennifer was a mere
afterthought, as the same was considered part of the res gestae. It explained that when
Jay Lourd asked Jennifer about the presence of Gilbert right after he was shot, he
simply relayed to her what he saw and observed. Likewise, his statement was reliable
as part of the res gestae for being spontaneously uttered in reaction to a startling
occurrence, i.e., the shooting of Jay Lourd. 1 1 Moreover, the RTC found the killing to
have been attended by treachery, as the prosecution was able to establish that: (a) at
the time of the incident, Jay Lourd was drinking with his friends and had no inkling that
anyone would shoot him; and (b) the shooting took place in which he could not properly
defend himself. 1 2 On the other hand, it discredited Gilbert's defense of alibi, since he
failed to show that it was physically impossible for him to be at the vicinity of the crime.
13

Aggrieved, Gilbert appealed 1 4 to the CA.

The CA Ruling
In a Decision 1 5 dated April 21, 2017, the CA a rmed Gilbert's conviction with
modi cations, increasing the awards of civil indemnity and moral damages to
P75,000.00 each; awarding P75,000.00 as exemplary damages and P50,000.00 as
temperate damages; and imposing on all monetary awards interest at the rate of six
percent (6%) per annum from the date of nality of its decision until fully paid. 1 6
Ultimately, it ruled that the prosecution was able to prove all the elements of the crime
of Murder in light of the res gestae declaration of Jay Lourd who positively identi ed
Gilbert as his assailant. 1 7
Hence, the instant appeal.
The Issue before the Court
The issue for the Court's resolution is whether or not Gilbert's conviction should
be upheld.
The Court's Ruling
The appeal is meritorious.
At the outset, it must be stressed that an appeal in criminal cases opens the
entire case for review, and thus, it is the duty of the reviewing tribunal to correct, cite,
and appreciate errors in the appealed judgment whether they are assigned or
unassigned. 1 8 "The appeal confers the appellate court full jurisdiction over the case
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 and renders such court competent to examine records, revise the judgment appealed
from, increase the penalty, and cite the proper provision of the penal law." 1 9
To successfully prosecute the crime of Murder, the following elements must be
established: (a) that a person was killed; (b) the accused killed him or her; (c) the killing
was attended by any of the qualifying circumstances mentioned in Article 248 of the
RPC; and (d) the killing is not parricide or infanticide. 2 0
Proceeding from the foregoing considerations, the Court rules that the
prosecution failed to establish with proof beyond reasonable doubt that Gilbert is the
perpetrator who shot and killed Jay Lourd.
To recount, the prosecution built its case primarily on Jay Lourd's res gestae
declaration that it was Gilbert who shot and killed him, i.e., shortly after he was shot, he
uttered to Jennifer, "Panggay, you see if Gilbert is still there?" Consequently, the RTC
and the CA afforded the same with full evidentiary weight and treated it as direct
evidence in convicting Gilbert of the crime charged. Under the Revised Rules on
Evidence, a declaration is deemed part of the res gestae and admissible in evidence as
an exception to the hearsay rule when the following requisites concur: (a) the principal
act, the res gestae, is a startling occurrence; (b) the statements were made before the
declarant had time to contrive or devise; and (c) the statements must concern the
occurrence in question and its immediately attending circumstances. 2 1
Tested against these considerations, the Court agrees with the ndings of the
RTC and the CA that Jay Lourd's utterance is admissible in evidence as it formed part of
the res gestae, given that: (a) there was a startling occurrence, that is, he was mortally
shot; (b) the declaration was spontaneously done without an opportunity to concoct or
contrive a story, since it was done shortly after such shooting; and (c) it concerned the
shooting in question and its immediately attending circumstances.
At this point, however, it is well to clarify that admissibility of evidence should not
be equated with weight of evidence. 2 2 Admissibility refers to the question of whether
certain pieces of evidence are to be considered at all, while probative value refers to the
question of whether the admitted evidence proves an issue. Thus, a particular item of
evidence may be admissible, but its evidentiary weight depends on judicial evaluation
within the guidelines provided by the rules of evidence. 2 3
Here, while the Court agrees that Jay Lourd's utterance — "Panggay, you see if
Gilbert is still there?" — should be admitted in evidence as part of the res gestae, the
courts a quo erred in considering the same as direct evidence of the killing and that
Gilbert was the perpetrator thereof. Plainly, Jay Lourd's utterance did not contain any
positive and categorical identi cation of Gilbert as his assailant. While it may be argued
that, from the utterance, Gilbert had something to do with his mortal wounds, such
utterance is ultimately inconclusive evidence to prove that Gilbert was identi ed by Jay
Lourd as his assailant. Faced with con icting interpretations as to the nature of Jay
Lourd's statement, the Court must be guided by the equipoise rule, which instructs that
where inculpatory facts and circumstances are capable of two or more explanations,
one of which is consistent with the innocence of the accused and the other consistent
with his guilt, then the evidence does not ful ll the test of moral certainty and is not
su cient to support a conviction. 2 4 Applying this rule to the present case would
properly lead the Court to conclude that Jay Lourd's utterance cannot be treated as
direct evidence to positively and categorically implicate Gilbert of the crime charged.
Be that as it may, the Court is aware that in certain instances, the prosecution
may still sustain a conviction despite the absence of direct evidence, provided that it is
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 able to present circumstantial evidence that would establish an accused's guilt beyond
reasonable doubt. Circumstantial evidence consists of proof of collateral facts and
circumstances from which the main fact in issue may be inferred based on reason and
common experience. It is su cient for conviction if: (a) there is more than one
circumstance; (b) the facts from which the inferences are derived are proven; and (c)
the combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt. To uphold a conviction based on circumstantial evidence, it is
essential that the circumstantial evidence presented must constitute an unbroken chain
which leads one to a fair and reasonable conclusion pointing to the accused, to the
exclusion of the others, as the guilty person. Stated differently, the test to determine
whether or not the circumstantial evidence on record is su cient to convict the
accused is that the series of circumstances duly proven must be consistent with each
other and that each and every circumstance must be consistent with the accused's guilt
and inconsistent with his innocence. 2 5
Applying these principles to the evidence that appear on record, the Court nds
that the prosecution had likewise failed to present su cient circumstantial evidence to
establish Gilbert's guilt beyond reasonable doubt. Records show that aside from Jay
Lourd's utterance, there is only one (1) other circumstance that could possibly point to
Gilbert as the assailant, and that is their previous quarrel with one another. 2 6 However,
the totality of these circumstances is insu cient to produce a moral certainty that it
was indeed Gilbert who shot and killed Jay Lourd.
Finally, the Court also notes that the testimony of Allan who was with Jay Lourd
when the latter was killed, further cast doubt on the real identity of the perpetrator. On
cross-examination, Allan admitted that it was improbable to see who the shooter was
and where the gunshot came from "because it was very dark." Moreover, he opined that
he was not sure if Jay Lourd was able to see the shooter, as he already ran away.
Pertinent portions of his testimony read:
[Atty. John Martin Sese]:
    But of course, before that Mr. Witness you will agree with me that you
heard a gun shot?
[Allan]:
  Yes, sir.
Q: And you will also agree with me Mr. Witness, that when you heard that gun
shot, you look (sic) at the direction where that gunshot came from?
A: Yes sir, I looked back but I did not see anybody because it was
very dark . " madulom-dulom "
xxx xxx xxx
Q: Mr. Witness, you said that when you look (sic) back you cannot (sic) see
anybody because it was very dark, correct?
A: Yes, sir.
Q: Since it was very dark, Jay Lourd could not have (sic) also possibly seen
the person who fired the gun, is that correct?
A: I do not know if Jay Lourd was able to see because I already ran
away .
Q: But immediately after the ring of the gun Mr. Witness, you looked at the
direction from where it came from, is that correct?
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 A: Yes, sir.
Q: And personally, you did not see that any person was there
because it was very dark ?
A: Yes, sir . 2 7 (emphases and underscoring supplied)
In conclusion, the Court nds that the prosecution failed to establish with proof
beyond reasonable doubt the identity of Jay Lourd's killer. It is elementary that in every
criminal prosecution, the identity of the offender, like the crime itself, must be
established by proof beyond reasonable doubt. Indeed, the rst duty of the prosecution
is not to prove the crime but to prove the identity of the criminal, for even if the
commission of the crime can be established, there can be no conviction without proof
of identity of the criminal beyond reasonable doubt. 2 8 Accordingly, there being no
evidence su cient to support a conviction, the Court hereby acquits Gilbert of the
crime charged.
WHEREFORE , the appeal is GRANTED . The Decision dated April 21, 2017 of the
Court of Appeals in CA-G.R. CR H.C. No. 08103 is hereby REVERSED and SET ASIDE .
Accordingly, accused-appellant Gilbert Floresta y Selencio is ACQUITTED of the crime
of Murder. The Director of the Bureau of Corrections is ordered to cause his immediate
release, unless he is being lawfully held in custody for any other reason.
SO ORDERED.
Carpio, Caguioa, J.C. Reyes, Jr. and Lazaro-Javier, JJ., concur.

Footnotes

1. See Notice of Appeal dated December 1, 2017; rollo, pp. 16-18.

2. Id. at 2-15. Penned by Associate Justice Florito S. Macalino with Associate Justices Mariflor
P. Punzalan Castillo and Maria Elisa Sempio Diy, concurring.
3. CA rollo, pp. 15-25. Penned by Judge Designate Arturo Clemente B. Revil.
4. Dated December 29, 2012; records, pp. 1-2.

5. Id. at 1.
6. See rollo, pp. 4-6.

7. "Rellie" or "Rilly" in some parts of the records.

8. See rollo, p. 6.

9. CA rollo, pp. 15-25.

10. Id. at 24.
11. See id. at 20-21.

12. See id. at 24.

13. See id. at 19-20.

14. See Notice of Appeal dated December 9, 2015; id. at 26-29.

15. Rollo, pp. 2-15.
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 16. Id. at 14-15.

17. See id. at 7-13.

18. See People v. Dahil, 750 Phil. 212, 225 (2015).
19. People v. Comboy , 782 Phil. 187, 196 (2016).

20. Ramos v. People, 803 Phil. 775, 783 (2017).

21. People v. Sace, 631 Phil. 335, 348 (2010).

22. Republic v. Galeno, 803 Phil. 742, 750 (2017), citing People v. Parungao, 332 Phil. 917, 924
(1996).
23. Heirs of Sabanpan v. Comorposa, 456 Phil. 161, 172 (2003).
24. People v. Librias, 795 Phil. 334, 344 (2016).
25. Atienza v. People, 726 Phil. 570, 582-583 (2014).
26. See TSN, February 14, 2014, p. 4; TSN, July 4, 2014, pp. 6-8; and TSN, June 26, 2015, pp. 7-
10.
27. TSN, August 8, 2014, pp. 7-8.

28. See People v. Caliso, 675 Phil. 742, 752 (2011).

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