G.R. No. 89542




Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 89542 June 27, 1990 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BENJAMIN BERNARDO y MARIANO, accused-appellant. The Solicitor General for plaintiff-appellee. Public Attorney's Office for accused-appellant. SARMIENTO, J.: The accused appeals from the decision of the trial court,1 finding him guilty of violating Section 4, Article II, of the Dangerous Drugs Act, sentencing him to life imprisonment, and to pay P20,000.00 in fine, and to pay the costs. The evidence for the prosecution shows that at about 9:00 a.m. of September 7, 1988, the Narcotics Command (NARCOM) based in Upper Calarian, Zamboanga City, was alerted by an informant that a certain "Benjie" was peddling marijuana, a prohibited plant, along Cabatangan Road, San Roque, Zamboanga City. Thereupon, Major Cabayacruz, local NARCOM officer-in-charge, directed Sgt. Amos Foncardas to conduct a surveillance. Upon that mandate, Sgt. Foncardas instructed Sgt. Romeo Dayag to pursue a "test-buy" operation. At or about 5:00 p.m. of the same day, Sgt. Dayag and his civilian informer allegedly proceeded to Cabatangan Road where they found "Benjie". Dayalg's mole supposedly introduced him (Dayag) to "Benjie" and informed the latter that he (Dayag) wished to purchase marijuana. "Benjie" allegedly handed Dayag three cigarettes of marijuana worth P5.00. Thereafter, Dayag and his informant repaired to the NARCOM office where they submitted the three sticks of marijuana for examination at the PC-INP crime laboratory. The following day, September 8, 1988, the local NARCOM unit formed a team led by Sgt. Foncardas to bust "Benjie". Sgt. Dayag fronted as the group's "poseur-buyer". At about 5:30 p.m., the team proceeded to Cabatangan Road aboard motorcycles. Sgt. Dayag allegedly walked toward a sari-sari store where "Benjie", along with three or four persons, was standing. Sgt. Foncardas and company positioned themselves fifteen meters away from the store. Dayag allegedly approached "Benjie" and told him that he wanted to buy marijuana worth P10.00. "Benjie" allegedly recognized him as his customer the day before. He allegedly turned over to him six sticks of marijuana. Thereupon, he, Dayag, paid two marked five-peso bills. Dayag thereafter placed his right hand on his head in a prearranged cue to Sgt. Foncardas, et al. The latter then swooped down on "Benjie" and announced a bust. "Benjie" was bodily searched where the two marked five-peso bills were recovered. Dayag meanwhile passed the six marijuana cigarettes to Foncardas. "Benjie" was brought to the NARCOM headquarters. He was later Identified as Benjamin Bernardo y Mercado, the accused below, the appellant herein. Athena Anderson, forensic chemist of the PC-INP crime laboratory, positively Identified the nine sticks of marijuana to be actually, marijuana. The accused's defense is alibi, i.e., that at or about the tune Sgt. Dayag allegedly went to the sari-sari store, he, together with others, was at a farm, allegedly three kilometers away. The accused said that it was day-to-day routine that he was at the farm where he stayed until 6:00 p.m. Hence, and so he submits, he could not have been near the locus criminis either on September 7 or 8, 1988. He also testified that at or about 6:00 p.m. of September 8, 1988, he, with his brother, Romeo, and uncle, Benjamin de los Reyes, were watching television, while his mother, Teresita, was minding the store, when four persons on motorcycles arrived. He alleged that without warning, the two manacled him and dragged him toward the motorcycles. Teresita rushed to the side of his son and held on to him in a tug of war between mother and the military. However, one of them allegedly pointed an armalite rifle at her and then she fainted. The accused was allegedly brought to the Southern Command (SOUTHCOM) headquarters where he was interrogated. He alleged that he was mauled and told to come across with P5,000.00 in exchange for freedom. He also claimed that he was denied food and water throughout. The trial judge, as we said, convicted the accused and sentenced him accordingly. In returning the verdict of guilty, His Honor noted that the accused had been positively Identified as the one who sold marijuana to Sgt. Dayag. He also rejected his alibi, that he (the accused-petitioner) was at that time three kilometers away from the scene of the crime, since it was not physically impossible to travel, on foot, therefrom, and in time to ply his illegal trade at the time the authorities claimed they saw him. The trial judge also relied on the failure of Teresita, the accused's mother, to report the accused's "abduction" on September 8, 1988 by unknown armed men to the authorities, assuming that the accused had been abducted. He observed that neither his brother, Romeo, or his father, Roman, bothered to bring the incident to the police, if there indeed was any irregularity in the NARCOM's actions. He found no ulterior motive on the part of the accused's captors in making the arrest, more significantly, because of the fact that the very defense admitted that the accused did not know the NARCOM agents who swooped down on him. He disregarded pleas by the accused that the sticks upon sticks of cannabis found in his person were planted and that he was mauled and blackmailed. If it was true that he was manhandled, so the trial judge noted, why was it, he asked, that he did not complain to the fiscal. The accused now has it that the trial court, in rendering its verdict, erred. He submits that the evidence for the prosecution was unreliable and unworthy. He posits three questions. First, he says that he could not have in all likelihood sold marijuana in broad daylight, in a crowded neighborhood, and in full view of the public ("If (he] was really a drug pusher ... [h]e would have asked Sgt. Dayag to go inside. . ." 2) He also wonders why Sgt. Dayag did not apprehend him on September 7, 1988, when they first closed the drug deal. He impugns the decision because the prosecution never presented the informant. The Court finds that the predicament of the accused hangs on the credibility of the testimony of the poseur-buyer, Sgt. Romeo Dayag. We think that it hinges on it, because: (1) Nobody else, except him, saw marijuana changing hands; Sgt. Dayag's backup did not see it and acted alone on Dayag's cu; 3 (2) The informant-who might have witnessed the event-was not made to take the stand. 4 Sgt. Dayag testified as follows: xxx xxx xxx Q Now, do You remember if on or around September 7,1988, you were on duty? A We were in the office at that time. Q Now, while you were in the office of the Narcom, Zamboanga City on September 7, 1988, at around 3:30 o'clock in the afternoon, will you please tell the Honorable Court what transpired while you were in your office? A At that time while I was called by our team Leader, Sgt. Foncardas, he handed to me P5.00 bill for the purpose of "test-buy" operation. Q Now, after Sgt. Foncardas handed to you the P5.00 bill to conduct a test-buy operation in the vicinity, what did you do? A After he handed to me the P5.00 bill, I was together with our civilian informant and we went to Cabatangan, San Roque, this city. Q Did you actually arrive in San Roque, Cabatangan road together with the civilian informant on that afternoon? A Yes, sir. Q Now, when you arrived there together with the civilian informant in San Roque, Cabatangan road, what transpired there? A Upon arriving there, we saw the suspect, a certain Benjie. Q Now, when you and the civilian informant saw the suspect which you said is a certain Benjie, what did you do and the civilian informant who was together with you? A We approached the suspect and I was introduced to him. Q After you were introduced to the suspect, what happened next? A After introducing, I asked him if we could buy marijuana tops in the amount of P5.00. Q After you have asked the accused or the suspect if you could buy marijuana from him, what transpired next? A After a minute, I was given three sticks and I handed to him the P5.00. Q Where did he get the three sticks that was (sic) handed to you? A From his pocket. Q Now, after you were handed the marijuana and you have given to him the P5.00, what happened? A We went back to the office together with the civilian informant. Q And what did you do when you arrived in the scene? A I handed the three sticks to Sgt. Foncardas. Q Now, after Sgt. Foncardas received from you the three sticks of rolled marijuana, what did Sgt. Foncardas do to the three sticks of rolled marijuana? A He unrolled the marijuana and he smelled it and according to him that he is going to turn over to the P.C. Crime Laboratory. xxx xxx xxx Q Now, in the afternoon of September 8,1988, were you able to actually arrive in the place in the vicinity of San Roque, Cabatangan? A At around six o'clock already. Q And who were your companions during that time, if you have any? A My companions,--Sgt. Foncardas, our Team Leader; Sgt. Pedro Mamuad and... Q Upon arrival at the place, what did You yourself do and what did your companions do also? A Upon arriving in the vicinity, I was the one who went nearer while my other companions stayed a little further. Q When you say you were the only one who went nearer, to whom did you went (sic) nearer? A To the suspect. Q And because you went near the suspect, were you able to talk with the suspect? A Yes, sir. Q And what did you and the suspect were talking about? (sic) A I talked to the suspect if I can buy marijuana. Q And what is his answer? A He did not answer anymore, but instead he went immediately to get the marijuana. Q Now, in what form that the marijuana was given to you by the accused? A It is rolled, six pieces. Q Now, after you smell (sic) it, what did you do next? A After I smell (sic) it, I handed to him the P10.00. Q Did the accused receive the money from you, the two P5.00 bills? A Yes, he received it. Q When the six sticks rolled of dried marijuana were already in your hands, and the accused, has already received the two P5.00 bills used in the buy-bust operation, what did you do next? A After that I gave signal to my companions. Q In what manner did you give the signal to your companions? A I placed my right hand on top of my head. Q After you made that signal, tell the Honorable court what transpired next? A After I made the signal, my companions rushed up. Q When you say rushed, as to where did they rush up? A To the place where were talking to the suspect. Q When they went to the place where you and the suspect were standing or talking, what happened next? A They introduced themselves that they are Narcom agents. Q And after they have introduced themselves as Narcom agents, what transpired next? A The marked money was recovered from his right hand. Q And who recovered the marked money from the right hand of the suspect? A Sgt. Foncardas. Q Now, what about the six sticks of rolled dried marijuana which you obtained from the accused, what did you do with the six sticks rolled dried marijuana? A I turned it over to our Team Leader. Q Who was your Team Leader? A Sgt. Foncardas. Q Now, after your team was able to arrest the suspect, what happened next,-what did you do with the suspect as well as the two P5.00 bills and the six sticks of rolled marijuana? A We conducted him to the office. 5 xxx xxx xxx We find his recital straightforward, spontaneous, and convincing. Moreover, the judge below had accepted his testimony, and who but a judge is in a better position to measure the credibility and demeanor of a witness. It has been held indeed in a long line of cases that in matters of credibility, this court leaves judges ample discretion, having personally seen the witness' deportment and having personally heard his account. 6 As in those cases, we defer to the finding--as to Sgt. Romeo Dayag's testimony--of His Honor in this case. Accordingly, we also affirm His Honor's decision. The accused's insistence that no dope peddler can pursue his trade in a public place holds, to our mind, no water. The exchange of marijuana (rolled up in sticks) from hand to hand and the passing of money from palm to palm are done in quick movements, and in swift succession. Furthermore, the transaction took place at 6:00 p.m. 7 and not 3:00 p.m. as the accused would have it, 8 and the twilight provided a good cover. The fact that Sgt. Dayag did not act the first time (September 7, 1988) he saw the accused is not fatal to the prosecution. As the Solicitor General submits, "Sgt. Dayag wanted to avoid being suspected of planting evidence." 9 The fact that the prosecution failed to produce the NARCOM's informant in court is of no moment. He is not, so the accused puts it, the "best witness" 10 to establish the fact that a "test-buy" operation had indeed occurred among the accused, Sgt. Dayag, and the latter's informer. Dayag himself testified that it happened, and as we observed, he, Dayag, positively Identified the accused as the drug pusher selling his wares along Cabatangan Road. In our considered opinion, Dayag has given the prosecution the evidence they needed to pin the accused on a drugs rap, and to build a case against him for pushing cannabis sativa. The defendant, moreover, has not successfully attributed any motive against the NARCOM or Dayag, and why either should testify falsely against him. The court finds no more necessity in dwelling on the accused's other charges, i.e., that the authorities had intimidated him or had set him up. We are convinced that based on the evidence on record, he is guilty as charged. WHEREFORE, the decision appealed from is AFFIRMED in toto. No costs. SO ORDERED. Melencio-Herrera (Chairman), Paras, Padilla and Regalado, JJ., concur. Footnotes 1 Regional Trial Court, Ninth Judicial Region, Branch 13; Eisma, Carlito, presiding. 2 Brief for Accused-Appellant, 8. 3 See People v. Rollo, G.R. No. 82737, July 5, 1989. 4 See supra. 5 T.s.n., session of July 5, 1989, 3-4; 7-9. 6 Among a host of cases, People v. Cu, No. L-1 3413, April 25, 1977, 76 SCRA 322. 7 Rollo, 15. 8 Brief, Id. 9 Rollo, Id., 53. 10 Id, The Lawphil Project - Arellano Law Foundation