G.R. No. 91129




Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 91129 August 25, 1992 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO PABLO Y DOLLOSO, accused-appellant. The Solicitor General for plaintiff-appellee. Biterbo D. Tagarda for accused-appellant. DAVIDE, JR., J.: Accused Antonio Pablo y Dolloso was charged before the Regional Trial Court (RTC) of Cavite City on 29 January 1986 for violating Section 4, Article II of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972. 1 The accusatory portion of the information reads: That on or about January 29, 1986, in the City of Cavite, Republic of the Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without legal authority, did, then and there, willfully, unlawful and knowingly deliver and sell to a poseur buyer one (1) slice of marijuana cake and one (1) aluminum foil of dried marijuana leaves. The case was docketed as Criminal Case No. 21-86. Accused entered a plea of not guilty when arraigned on 17 March 1986. 2 At the trial, the prosecution established its case through the testimonies of P/Sgt. Rodrigo Espiritu and T/Sgt Jacinto de la Cruz, both members of the Narcotics Command (NARCOM) Unit stationed at Noveleta, Cavite, and Constancia Franco-Salonga, a forensic chemist of the National Bureau of Investigation (NBI). The accused through his and his friend Rodymir Calalang's testimony, set up the defense of denial. On 4 May 1987, the trial court promulgated its judgment convicting the appellant of the crime charged and sentencing him: . . . to undergo imprisonment of from twelve (12) years and one (1) day of reclusion temporal as minimum to twenty (20) years and one (1) day of reclusion temporal as maximum, to pay a fine of P5,000.00 without subsidiary imprisonment in case of insolvency and to pay the costs. 3 Accused appealed from said decision through a notice of appeal which does not indicate the court to which he is appealing. 4 Considering the penalty imposed, the Branch Clerk of Court transmitted the records of the case to the Court of Appeals 5 which then docketed the same as C.A.-G.R. No. 05265. In the Appellant's Brief filed with the Court of Appeals, 6 the accused makes the following assignment of errors: 1. . . . the Trial Court erred in finding accused guilty of violation (sic) of Section 4, Article II of Republic Act No. 6425 as amended without the prosecution presenting the "Informer" who was alleged to be the buyer of marijuana cake from the accused. xxx xxx xxx . . . the Trial Court erred in finding accused guilty of the crime charged unsupported by positive facts and contrary to law and evidence. xxx xxx xxx . . . the Trial Court erred in giving full credit to the testimonies of Police Sgts. Rodrigo Espiritu and Jacinto de la Cruz who were not buyers of the marijuana cake nor heard (sic) the conversation that took place between accused and informer. xxx xxx xxx . . . the Trial Court erred in disregarding and discrediting the testimony of accused and his corroborating witness and without giving exculpatory weight to the evidence of the defense. 7 After the Appellee filed its Brief through the Office of the Solicitor General, the Court of Appeals rendered a decision on 23 November 1989 8 affirming the appealed decision with a modification of the penalty imposed for being incorrect. The dispositive portion of the decision reads: WHEREFORE, premises considered, the decision appealed from is modified in the sense that the accused-appellant Antonio Pablo y Dolloso is found guilty beyond reasonable doubt of violation (sic) of Section 4, Republic Act 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, and is sentenced to life imprisonment, and to pay a fine of P20,000.00, and the cost. However, the judgment herein shall not be entered and the case shall be, as it is hereby certified to the Supreme Court and the entire records thereof elevated thereto for review (Section 12, of Rule 124 of the Rules of Court; People vs. Daniel, 86 SCRA 511; People vs. Ramos, 88 SCRA 486; People vs. Centeno, 108 SCRA 710). SO ORDERED. 9 Pursuant to the last paragraph of the dispositive portion, the Clerk of Court of the Court of Appeals forwarded to this Court the entire records of this case, together with the transcript of the stenographic notes and exhibits, on 8 December 1989. 10 This Court required the accused to file his Brief, which he did on 13 March 1990. He merely reiterated the errors and arguments raised in the Brief he filed with the Court of Appeals. The Solicitor General filed the Appellee's Brief on 21 June 1990. The facts of the case, as summarized by the Court of Appeals, are as follows: At the trial the prosecution has established that at about 8:00 o'clock in the morning of January 28, 1986 an informer by the name of "Bobby" told Sgt. Jacinto dela Cruz of the NARCOM Unit stationed at Noveleta, Cavite that a certain "Boy Roberts" whose real name is Antonio Pablo y Dolloso (herein accused-appellant) of Cavite City was selling marijuana. Immediately Lt. Jorge Corpuz, Officer-in-Charge, designated Sgt. Jacinto dela Cruz and Sgt. Rodrigo Espiritu to form a team and conduct a "buy-bust operation." At 8:30 that same morning, the team together with Bobby proceeded to Cavite City and arrived at around 9:00 o'clock at Dubai Street near San Sebastian College, Cavite City. From there, they went to Ejercito St., Sta Cruz, Cavite, where Bobby pointed to the house of the accused. After closely watching the accused's place for some time, the team and Bobby returned to the place of the rendezvous near San Sebastian College. Sgt. dela Cruz instructed Bobby to buy from the accused one (1) slice of marijuana cake and one (1) foil of marijuana leaves by using four (4) marked P5.00 bills. Sgt. dela Cruz supplied the amount of P20.00 in marked bills. They told Bobby to give a pre-arranged signal, by lifting his shirt, after the marijuana cake and marijuana leaves had been handed to him. Sgts. dela Cruz and Espiritu saw Bobby stop in front of the accused's house and called for "Boy Roberts." The latter appeared and after a short conversation, the aforenamed officers saw Bobby hand the P20.00 marked bills to the accused who entered his residence and after a while returned with something wrapped in a tin foil and gave it to Bobby. Upon seeing the pre-arranged signal, the two (2) officers swooped down on the accused and arrested him. On the spot, the officers recovered from the accused the marked bills and from Bobby one slice of marijuana cake and one (1) foil of marijuana leaves. The accused did not resist arrest. Sgt. dela Cruz and Sgt. Espiritu went inside the house of the accused. Upon further investigation the accused brought out three (3) cakes of marijuana which he kept inside the refrigerator and five (5) foils of marijuana leaves which he took from a yellow plastic can near the water tank outside the house. The officers together the (sic) accused passed by the Cavite Police Station before returning to their headquarters at Noveleta, Cavite. Thereafter, the accused without the assistance of counsel was investigated by Sgt. Manolo. On the same date, January 28, 1986, Lt. Jose Jorge E. Corpuz, Officer-In-Charge of the Narcotic Command, Cavite District Office, Noveleta, Cavite submitted to the Director, National Bureau of Investigation, Manila a written request for laboratory examination to determine the presence of prohibited or regulated drugs of the following: one (1) foil of marijuana dried leaves, three (3) bricks of brownies cake (marijuana cakes), and five (5) foils of marijuana dried leaves (Exh. A). The aforementioned specimens were received by Research Chemist Constancia Franco Salonga (Exh. B). After conducting the microscopic, chemical, and chromatographic examinations on (1) one small brick of brownie cake allegedly containing marijuana and (2) one foil containing dried leaves suspected to be marijuana, Research Chemist Ms. Salonga found that said specimens gave positive results of marijuana (Exh. C-2). Ms. Salonga testified on the examinations she conducted and the findings she made on the aforementioned specimens. The defense of the accused-appellant, 34, consists of denials. According to him, he does not know Bobby but knew the informer as Andoy. At about 10:00 in the morning of January 28, 1986, while he was fixing his bed on the lawn inside the gate of his house, Sgt. dela Cruz, Sgt. Espiritu and Andoy arrived in a motor vehicle. Immediately after having alighted, Sgt. dela Cruz and Sgt. Espiritu pointed their guns at him and told him to run. Andoy who was carrying a brown paper bag went up his house. With ihis (sic) gun, Sgt. dela Cruz hit him (accused) three times while at standing (sic) position and two times while lying prostrate on the drive way. Sgt. Espiritu was pointing a gun at him. A little later, Andoy came down from the house carrying an orange colored bag which was the same bag presented to the trial court by Fiscal Fred Aguilar. Andoy told the officers that the bag contained marijuana cake (sic). Sgt. dela Cruz then told him to go up the house and show them the bedroom. Sgt. dela Cruz directed Andoy to search the room, but they did not find any marijuana there. Fifteen (15) minutes thereafter, Sgt. Espiritu came up, carrying a yellow plastic container which, according to the officer, was found near the water tank, and contained marijuana. Andoy also searched the bedroom of his mother, but he did not find anything. The accused knew Andoy as a NARCOM informer. The gas stove presented by Fiscal Aguilar was taken from their house which they utilized whenever there is no electricity. Accused-appellant also declared that Andoy nursed ill-feelings against him, because he bested Andoy in their courtship of a certain Grace who was a waitress at Violy's refreshment parlor at San Antonio. Accused-appellant denied that Sgt. dela Cruz had taken from him four (4) P5.00 marked bills. He stated that while he was being investigated at the NARCOM headquarters at Noveleta, Sgt. dela Cruz took out from his wallet a P20.00 bill, which he asked to be changed into four P5.00 bills upon which Sgt. dela Cruz placed markings. However, on cross-examination, accused-appellant declared that he does not know of any reason why Sgt. dela Cruz and Sgt. Espiritu would falsely accuse him of selling prohibited drugs except what had happened between him and Andoy, and that he would not know if the two (2) officers would connive with Andoy to falsely accuse him of selling marijuana. Corroborating the accused was Rodimar Calalang, 21, a friend of five (5) years and neighbor at Ejercito St. 11 The first three (3) assigned errors raise the issue of whether or not the evidence for the prosecution has established beyond reasonable doubt that the accused sold marijuana in violation of Section 4, Article II of R.A. No. 6425, as amended. It is the thesis of the accused that without having presented the informer who posed as buyer, the fact of sale could not be established. In disposing of these assigned errors and issue, the Court of Appeals held: We do not agree. It has been established that Sgt. dela Cruz gave Bobby, their informer, four (4) P5.00 marked bills with which to buy marijuana cake and one (1) foil of marijuana dried leaves from accused-appellant. Sgt. dela Cruz instructed Bobby that as soon as the accused should have given or delivered the marijuana cake and marijuana dried leaves to him, he would lift his shirt which was the signal for them to make the arrest. Sgt. dela Cruz and Sgt. Espiritu testified that they saw Bobby talk to the accused-appellant and thereafter hand the P20.00 bill to him. Thereafter, accused appellant went inside his house and immediately came back with the marijuana cake and one marijuana leaves (sic) in a tin foil. When Bobby lifted his shirt, the two (2) officers swooped down on accused-appellant and arrested him. The fact that the two (2) officers did not hear what conversation transpired between Bobby and the accused-appellant is immaterial for the purpose of establishing the sale. Considering the fact that money was handed by Bobby to the accused-appellant and immediately thereafter the latter delivered to the former the subject marijuana cake and marijuana leaves, there can be no transaction established other than that of a sale. The burden of proof that it was not a sale was shifted to the accused-appellant. In the case at bar, the accused-appellant did not overcome that burden. He did not present any evidence to disprove that it was a sale either by himself or by the informer whom he knew by the name of Andoy. Consequently, the fact of sale stood unrebutted. Indeed, Section 2 of Republic Act 6425, as amended par. (o) defines "sale" to mean the act of giving a dangerous drug whether for money or any other material consideration. 12 As to the fourth assigned error, the Court of Appeals ruled that the trial court properly rejected the version of the accused. Thus: The defense which accused-appellant set up at the trial is that the marijuana cake and the marijuana dried leaves submitted by the prosecution to the lower court were planted evidence. The trial court who has observed the demeanor of the witnesses presented by both the prosecution and the defense gave credence to the witnesses for the prosecution and concluded that the crime charged in the information was proven beyond reasonable doubt. Aside from the settled rule that the findings of fact of the trial court which depend upon the proper evaluation of credibility of witnesses are given great weight on appeal and are not usually disturbed unless there is a showing of strong and cogent reasons therefore, 13 it is really incredible that Sgt. dela Cruz and Sgt. Espiritu who have not been shown to have any personal motive of falsely charging the accused with a capital offense would do so merely to satisfy the alleged humiliation of Andoy, the informer, whom the accused-appellant had allegedly bested in the courtship of a certain Grace assuming such courtship to be true. And to what extent of moral influence or ascendency (sic) has Andoy over the two officers who testified against him, the accused-appellant has not even attempted to show. It has been repeatedly held that there is no test of the truth of human testimony except its conformity to the knowledge and common experience of mankind. 14 To be believed the testimony must not only proceed from the mouth of a credible witness, but must be credible in itself. 15 Measured by this criteria, We cannot believe that Sgt. dela Cruz and Sgt. Espiritu would have taken time and effort to drive from their headquarters at Noveleta, Cavite to Ejercito St., Sta. Cruz, Cavite City and planted as evidence the marijuana cake and marijuana leaves that were submitted to the National Bureau of Investigation for examination and which were found to be positive as to the presence of marijuana just to satisfy the whims of a certain Andoy, who was known to the officers as Bobby, their informer. We hold that no reasonable prudent man would believe appellant's theory of defense, which was easy to concoct, but hard to believe. 16 After a painstaking examination of the records of this case, evaluation of the evidence adduced and review of the decision of the Court of Appeals certified to Us, We find the latter to be fully supported by the evidence; moreover, We rule that the modification of the sentence is correct, except that the portion on subsidiary imprisonment should have been likewise deleted. Notwithstanding the sufficiency of the findings and conclusions of the Court of Appeals, however, We wish to amplify certain points. In support of his three (3) assigned errors, accused stresses that: (a) there was no reason to withhold the testimony of the poseur-buyer because the latter was known to him, hence, the danger to the poseur-buyer's person sought to be avoided by not revealing his identity does not exist; the non-presentation then of the poseur-buyer gives rise to the presumption that his testimony would be adverse to the prosecution; 17 (b) it was improbable that he would commit the offense because it is contrary to human experience for a drug pusher to sell marijuana in the open; and (c) there is no showing that the slice of marijuana cake and one foil of dried marijuana leaves are the same items allegedly taken from him. We find these contentions to be bereft of merit. There was no suppression of evidence when the poseur-buyer was not presented. Firstly, his testimony would at best be corroborative because Sgt. Dela Cruz and Sgt. Espiritu were themselves eyewitnesses to the delivery of the marked P5.00 bills by Bobby, the informer, to the accused and the subsequent delivery of the marijuana cake and marijuana leaves by the latter to the former. His non-presentation was not fatal to the prosecution's case. Secondly, having admitted that Bobby is known to him, accused could have called him to the witness stand as a hostile witness. Of course, if he chose this strategy he would be doing so at his own risk. As held by this Court in People vs. Raul Fernandez: 18 There is as well no merit in the claim of the accused that the non-presentation of the poseur-buyer as a witness is a clear suppression of evidence. The testimony of the poseur-buyer, if it were given, would at best be corroborated because Navarro and Feliciano sufficiently established how the crime was committed. Thus his non-presentation was not fatal to the prosecution's case. 19 Of course, it would be different if the police officers were unable to see the actual sale of marijuana. In such a situation, an exception arises and the poseur-buyer should be presented as a witness. 20 Besides, there is no showing in this case that the poseur-buyer was not available for examination. If the accused honestly believed that the testimony of such poseur-buyer would be adverse to the prosecution, the former should have availed of the compulsory process to have such poseur-buyer produced as witness, or even as a hostile witness. The presumption laid down in Section 3(e), Rule 131 of the Rules of Court, to wit: (e) That evidence willfully suppressed would be adverse if produced; does not apply when the testimony of the witness is merely corroborative. As early as 1912, in United States vs. Gonzales, 21 this Court already held: When an act has been witnessed by several persons, the prosecution has no need, nor is it obliged, to present all such witnesses, but only those it deems necessary; it is enough that it employ such witnesses as in its opinion may be sufficient to prove the facts alleged in the complaint. In United States vs. Dinola,22 this Court pointedly ruled that: The presumption that the evidence omitted by a party would, if presented, be adverse to him, is not applicable to merely corroborative evidence. Neither does it apply in cases where the witness, as in this case, is available to the accused 23 because then, the evidence would have the same weight against one party as against the other. 24 In People vs. Andiza, 25 We had the occasion to state that although Patrolman Hernandez and the civilian informer could have been highly competent witnesses, being themselves the poseur-buyers, their testimonies were not, however, indispensable in view of the declarations of not only one (1), but two (2) other eyewitnesses. Their non-presentation as witnesses does not mean suppression of testimony that is adverse to the prosecution. Besides, the matter of presenting witnesses is the prerogative of the Prosecutor. And in the more recent case of People vs. Bati, 26 this Court held: In the case at bar, there were other prosecution witnesses who testified and positively identified appellant as the principal participant in the illegal transaction. Both Patrolmen Luciano and Caraan actually witnessed the same and their testimonies were based on their actual and personal knowledge of the events that took place leading to appellant's arrest. They may not have been within hearing distance, specially since conversation would expectedly be carried on in hushed tones, but they were certainly near enough to observe the movements of the appellant and the buyer. Moreover, these prosecution witnesses are all law enforcers and are, therefore, presumed to have regularly performed their duties in the absence of proof to the contrary. (People vs. Agapito, G.R. No. 73786, Oct. 12, 1987). As to the second point, We have held in a number of cases that drug pushing, when done on a small level, belongs to that class of crimes which may be committed at any time and at any place. The fact that the parties are in a public place and in the presence of other people may not always discourage them from pursuing their illegal trade as these facts may even serve to camouflage the same. 27 As to the third point, the prosecution, via the testimony of Sgt. Espiritu, sufficiently established that the slice of marijuana cake and the foil of dried marijuana leaves were the items taken from the accused. Thus, Sgt. Espiritu testified: Q Now, in a plastic evidence bag identified as Exh. E-6 the contents is (sic) a brick of marijuana cake as testified to by the Forensic Chemist, what connection has that to the brick which was the subject matter of the buy-bust operation? A This was the brick that he sold. Q Why do you say so? A We asked him also to sign and his signature appears here. Q Where? A (witness pointing to a signature over the brick) x x x x x x x x x Q Now, what about that foil of marijuana cigarettes that was the result of the buy-bust operation, where is it now? A (witness pointing to a foil of marijuana which was previously marked as Exh. E-5) Q Why are you sure that that is the foil of marijuana that was the result of that buy-bust operation? A We also have him signed, (sic) sir. x x x x x x x x x FISCAL AGUILAR: Q I am showing to you a receipt dated January 8, 1986 certifying that the undersigned has seized and taken possession of the property herein described from Antonio Pablo y Dolloso, what connection has that receipt with the receipt you issued? A This is the receipt of the property seized and that was prepared by Jacinto dela Cruz. FISCAL AGUILAR: We request that the same be marked as Exh. G. Q Whose signature is this, reading Jacinto dela Cruz? A To him (sic), sir. Q Are you (sic) present when it was signed by him? A Yes, sir. Q Below Sgt. dela Cruz's signature is the signature of one Antonio Pablo, whose signature is that? A That is Antonio Pablo's signature, sir. Q Were you also present when he signed it? A Yes, sir. FISCAL AGUILAR: I request that these two signatures be marked as Exh. G-1. COURT: Mark it. FISCAL AGUILAR: Immediately after these items were confiscated or recovered from the accused, where did you take it (sic)? A It was (sic) brought to the NBI for laboratory examination, sir. Q Who brought it there? A CIC Roberto Genido, sir. 28 Moreover, Constancia Franco Salonga, the forensic chemist who examined the contents of the foil and brick of brownie cake obtained from the accused, testified that after conducting miscroscopic, chemical and chromatographic examinations thereon, she concluded that the same were positive for marijuana. 29 Finally, We come to the penalty imposed by the trial court which is imprisonment "of from twelve (12) years and one (1) day of reclusion temporal as minimum to twenty (20) years and one (1) day of reclusion temporal as maximum," and a fine of P5,000.00. We are unable to trace the legal basis of this penalty. According to the Court of Appeals, the trial court applied the provisions of Section 4, Article II of R.A. No. 6425 before it was amended by P.D. No. 1675 which took effect on 17 February 1980. Before such amendment, the penalty provided for in said section was "imprisonment ranging from twelve years and one day to twenty years and a fine ranging from twelve thousand to twenty thousand pesos;" however, should a prohibited drug involved in any offense under said section be the proximate cause of the death of the victim thereof, the penalty imposable was life imprisonment to death and a fine ranging from twenty thousand (P20,000.00) to thirty thousand (P30,000.00) pesos. Thus, even under the pre-amendment provision, the penalty imposed is still incorrect for the trial court exceeded the maximum by one (1) day and fixed the fine at an amount very much less than the minimum provided therein. It likewise designated the penalty as reclusion temporal; nowhere in the law does such a designation appear. Perhaps, it thought all along that since the range is that for reclusion temporal, it might be best to so designate the penalty as such. Furthermore, considering that the penalty imposed is higher than prision correccional, no subsidiary imprisonment could be imposed pursuant to paragraph 3, Article 39 of the Revised Penal Code. As amended by P.D. No. 1675, the penalty provided for Section 4, Article II of R.A. No. 6425 is life imprisonment to death and a fine ranging from P20,000.00 to P30,000.00. However, the death penalty can no longer be imposed pursuant to the 1987 Constitution. 30 Accordingly, the proper penalty to be imposed should be life imprisonment and a fine of P20,000.00, without any subsidiary imprisonment in case of insolvency. WHEREFORE, judgment is hereby rendered AFFIRMING the decision appealed from finding the accused ANTONIO PABLO y DOLLOSO guilty beyond reasonable doubt of a violation of Section 4, Article II of R.A. No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, and sentencing him, as above modified, to suffer the penalty of life imprisonment and to pay a find of P20,000.00. Costs against the accused. SO ORDERED. Gutierrez, Jr., Bidin and Romero, JJ., concur. Feliciano, J., is on leave. Footnotes 1 Rollo, 4. 2 Original Records, 7. 3 Id., 91-92. 4 Id., 95. 5 C.A., Rollo, 3. 6 Id., 25, et seq. 7 Pages 6, 12, 14 and 16 of Brief, no pagination in C.A. records. 8 C.A. Rollo, 37-44. Per Associate Justice Celso L. Magsino, concurred in by Associate Justices Nathanael P. de Pano, Jr. and Alicia V. Sempio-Diy. 9 At page 44. 10 Rollo, 2. 11 C.A. Rollo, 38-41. 12 C.A., Rollo, 41-42. 13 Citing People vs. Amoncio, 122 SCRA 687 [1983]; People vs. Laganson, 129 SCRA 333, 346 [1984]; People vs. Akiran, 18 SCRA 239 [1966]; People vs. Cariño, 55 SCRA 576 [1974]. 14 Citing People vs. Alto, 26 SCRA 342, 357 [1968]; Castañares vs. Court of Appeals, 92 SCRA 567, 580 [1979]; People vs. Dayag, 56 SCRA 439 [1974]. 15 Citing People vs. Baquiran, 20 SCRA 451, 454 [1967]; People vs. Ilagan, 64 SCRA 170, 177 [1975]; People vs. Santos, 94 SCRA 277 [1979]. 16 Rollo, 42-43. 17 Section 3 (e), Rule 131, Rules of Court. 18 G.R. No. 86495, 13 May 1992. 19 Citing People vs. Vocente, 188 SCRA 100 [1990]; People vs. Tangliben, 184 SCRA 220 [1990]; People vs. Capulong, 160 SCRA 533 [1988]. 20 Citing People vs. Olaes, 188 SCRA 91 [1990]. 21 22 Phil. 325, 327 [1912]. See also People vs. Marasigan, 51 Phil. 701 [1928]. 22 37 Phil. 797, 801 [1981]. See also People vs. Tuzon, 56 Phil. 649 [1932]. 23 People vs. De Otero, 51 Phil. 201 [1927]. 24 People vs. Morado, 4 SCRA 292 [1962], citing III MORAN's Rules of Court, 1957 ed., 490. 25 164 SCRA 642 [1988]. 26 189 SCRA 97 [1990]. 27 People vs. Paco, 170 SCRA 681 [1989]; People vs. Rubio, 142 SCRA 329 [1986]; People vs. Toledo, 140 SCRA 259 [1985]; People vs. Policarpio, 158 SCRA 85 [1988]. 28 TSN, 23 June 1986, 6-9. 29 TSN, 12 May 1986, 1-11. 30 Section 19 (1), Article III. The Lawphil Project - Arellano Law Foundation