G.R. No. 105667 March 1, 1994
PEOPLE OF THE PHILIPPINES,
plaintiff-appellee,
vs.
WINIFRED DAVID @ "BUTCH," accused-appellant.
The Solicitor General for plaintiff-appellee.
Reydon P. Canlas for accused-appelant.
DAVIDE, JR., J.:
In an information filed on 13 June 1990 with Branch 57 of the Regional Trial Court (RTC) of Angeles City, and docketed therein as Criminal Case
No. 12502, accused Winifred David was charged with the violation of Section 4, Article II of R.A. No. 6425 (the Dangerous Drugs Act) allegedly committed as follows:
That on or about the 12th day of June, 1990, in the City of Angeles, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously sell and/or deliver dried marijuana fruiting tops to poseur buyer without the necessary or any authority whatsoever.
ALL CONTRARY TO LAW. 1
The accused pleaded not guilty to the charge.2
At the trial, the prosecution presented as its witnesses Maj. Marlene Salangad, Pfc. Lauro Mamac, Pfc. Inadio Ibay, and Pfc. Danilo Cruz for its evidence in chief, and recalled Pfc. Danilo Cruz on rebuttal. The defense presented the accused and his brother, Ronaldo David.
The following facts appear from the prosecution's evidence: At around 11:00 a.m. of 12 June 1990, Lt. Romeo Consengco, Chief of the PC Narcotics Command (NARCOM) based in Angeles City, instructed some NARCOM intelligence officers, namely, Pfc. Lauro Mamac, Pfc. Inadio Ibay, Pfc. Danilo Cruz, and Pfc. Arimbuyutan to conduct an entrapment operation against a certain Butch, a resident of Sor Luisa St. Brgy. Virgen de los Remedios, Angeles City. Butch was earlier identified by the NARCOM officers during a surveillance in the area.3
Before undertaking the operation, Lt. Consengco conducted a briefing. A P10.00 bill and two P5.00 bills, to be used as buy-bust money, were marked by Pfc. Cruz with his initials4
and the members of the team were given their respective roles. Pfc. Lauro Mamac was designed as the poseur-buyer,5 Pfc. Ibay was to be the back-up of Pfc. Mamac,6 and Pfc. Cruz and Pfc. Arimbuyutan made up the rest of the back-up team.7 Photocopies of the P5.00 bills were made and Lt. Consengco delivered to Pfc. Mamac the marked bills.8
Thereafter, the members of the team hired a passenger jeep and proceeded to the designated area via the Villa Pampang route.9 In front of a store, Pfc.Mamac approached a man to whom he intimated his desire to buy marijuana. The man told him that he knew someone selling marijuana and pointed to the accused who was in front of the store. Pfc. Mamac approached the accused and told him that he wanted to buy marijuana. The accused asked him the quantity he wanted to buy. Pfc. Mamac told him that he would buy ten pesos worth of marijuana. After advising Pfc. Mamac to wait, the accused left and came back handing to Pfc. Mamac two small plastic bags of marijuana. 10 In turn, Pfc. Mamac gave him the marked bills and immediately took off his cap — a prearranged signal which meant that his companions could close in . Pfc. Ibay, Pfc. Cruz, and Pfc. Arimbuyutan came and arrested the accused. Pfc. Ibay recovered from the accused the marked bills 11 while Pfc. Cruz received the marijuana from Pfc. Mamac. 12 Thereafter the accused was brought to their office for investigation. 13
Maj. Marlene Salangad, a forensic chemist of the PC Crime Laboratory at Camp Olivas, San Fernando, Pampanga, examined the plastic bags (Exhibits "A" and "B") and found the contents thereof to be positive for marijuana, a prohibited drug. Her findings are contained in Technical Report No.
NB-303-90. 14
On the other hand, the accused claimed that he was framed. According to him, at about 3:00 p.m. of 12 June 1990, while he was resting inside his house, two men, whom he later identified as Pfc. Cruz and Pfc. Ibay, called out his name. Thinking that they were interested buyers of wood carvings, the accused asked them what they wanted to purchase. The two replied that their manager, who was waiting inside the car, wanted to see him. When he approached the car, he noticed that all the men inside it were armed with guns. The accused wanted to retreat but Peter Hernandez, a NARCOM agent, went out of the car and embraced him while Pfc. Danilo Cruz placed the marijuana in the back pocket of the accused's short pants. Pfc. Mamac employed force in arresting him. He tried to free himself but in vain; there were people already watching them. At that moment, his older brother, Ronaldo, approached them and asked what was going on but the NARCOM agents warned him not to intervene. The accused was advised by the NARCOM agents to go with them to avoid a scandal. He was brought to their office at the San Nicolas Market and was locked up inside the detention cell. The following day, he was brought to the city jail. 15 His brother, Ronaldo, corroborated his story. 1
On rebuttal, Pfc. Danilo Cruz declared that he did not fetch the accused from his house on 19 June 1990 and stressed that he was a member of the back-up team whose only role was to arrest the accused if he would attempt to escape. The marijuana was sold to Pfc. Mamac, the poseur-buyer, and was not placed in the pocket of the accused. 17
On 30 July 1991, the trial court promulgated its decision, 18 dated 14 June 1991, the dispositive portion of which reads:
WHEREFORE, finding the accused guilty beyond reasonable doubt of the crime described and penalized under Sec. 4, Art. II of R.A. 6425, otherwise known as Dangerous Drugs Act as amended, he is hereby sentenced to suffer the penalty of life imprisonment and to pay a fine of P20,000,00. The marijuana subject matter of this case is hereby confiscated in favor of the government and ordered sent to the Dangerous Drugs Board for proper disposition.
SO ORDERED. 19
The accused seasonably appealed from the judgment to this Court. 20
In his Appellant's Brief, 21 the accused raised this lone assignment of error:
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED OF THE SERIOUS CRIME CHARGED AGAINST HIM BY TOTALLY THROWING AWAY IN THIN AIR THE DEFENSE EVIDENCE WITHOUT GIVING ANY PROBATIVE VALUE THEREFOR WHATSOEVER. 22
He supports this assignment of error with two main arguments: (1) "if the accused were a drug pusher, he would not trade his goods in the middle of the busy street and in front of a store where people frequently pass by," 23 and
(2) the accused was merely "instructed and induced . . . to go to a certain person to buy marijuana" which he did. 24
The accused admits, however, that this evidence on inducement "was not adduced during the presentation of defense evidence for the justifiable reason that it was only known to the [defense] counsel through the confession made by the accused to his wife whereby the latter informed the defense counsel only after the promulgation of the questioned decision." His counsel expresses his regrets that he "could [not] reduce that information into writing" as supporting evidence because "the wife and the three young children of the accused are now living somewhere in Bulacan [and] could no longer be contacted, their whereabouts unknown." 25
Counsel for the accused further speculates that if only "the said vital piece of information was introduced during the trial, it could have most probably led to the acquittal of the accused" for as a matter of fact "the presiding
Judge . . . perhaps believing in the innocence of the accused, or bothered by her conscience of having convicted him and that there might have been a serious miscarriage of justice if not rectified, through the Court Interpreter,
(Mr. Cristino Naguiat) contacted the [defense counsel] calling his attention to immediately file a Motion for Reconsideration on her own decision." 26
In amplification of the first argument, counsel for the accused makes a sweeping attack on the law enforcers charging that they are "more often the law breakers"; that "more often than not arresting a suspected drug pusher, is the easiest way of earning a living at the expense of the government and the erosion of the people's faith in the legal process"; and that if Generals, as recently exposed by Senator Tito Sotto and confirmed by Col. Ramsey Ocampo, the incumbent Chief of the NARCOM, are involved in drug trafficking, then "the ordinary agents can also do it." 27 He then concludes that he is "morally convinced that the accused is innocent of the serious crime that he is in [sic] convicted for. Otherwise, he could have entered into a plea bargaining to allow the accused to enter a plea of guilty to a lesser offense of Sec. 8 or Sec. 13 if possible. But the accused when informed thereof he emphatically told his counsel that he never did it." 28
We find the instant appeal to be unmeritorious.
Let us begin with the belatedly raised issue of inducement. We are called upon to reverse a decision on the basis of alleged facts which were never presented in evidence. Counsel knew, or ought to know, that the Rules of Court expressly provide that the court shall consider no evidence which has not been formally offered and that, as regards the testimony of a witness, the offer must be made at the time the witness is called to testify. 29
Assuming for the sake of argument that the so-called vital piece of evidence was discovered by the counsel for the accused immediately after the promulgation and before the decision became final, it does not qualify as newly discovered evidence which could be a ground for a new trial under Section 2(b), Rule 121 of the Rules of Court. The requisites for newly discovered evidence as a ground for a new trial are: (1) the evidence was discovered after the trial; (2) such evidence could not have been discovered and produced at the trial even with the exercise of reasonable diligence; and (3) the evidence is material and not merely cumulative, corroborative, or impeaching, and if of such weight that, if admitted, it will probably changed the judgment. 30 In the light of the accused's own representation, the first requisite is already lacking. If indeed he was induced to commit the crime by the policemen, then the evidence on this matter was known to him even before he was arraigned or, at the latest, during the trial. Yet he did not disclose this fact to his defense counsel for the formulation of the defense strategy or for plea-bargaining, as contemplated by the defense counsel. Instead, he claimed under oath that he was framed by the police. Whatever was in the mind of the accused, the fact remains that the claimed evidence could have been discovered and produced during the trial since the most competent witness therefor was the accused himself.
Defense counsel admits that the source of his information that the accused was merely "induced" is the latter's wife to whom the accused "confessed". Clearly then, if she were to testify thereon, her testimony would be hearsay. Hence, although it is not merely cumulative, corroborative, or impeaching evidence, it would, nevertheless, be inadmissible or of little probative value and would not change the judgment.
In the light of the deliberate failure of the counsel to state that the accused would be willing to testify as to that piece of evidence and the former's intimation that it would be the accused's wife who would have testified thereon, nothing is clearer than that either of the accused is not prepared to admit having falsely testified or the wife never confided to the counsel the alleged confession of the accused. Counsel then should have refrained from presenting to this Court a preposterous contention. His claim that the trial judge, perhaps bothered by her erroneous conviction, got in touch with him, through the court interpreter, to suggest the filing of motion for reconsideration is equally strange for the records disclose that the judge peremptorily denied the counsel's urgent motion for extension of time to file a motion for reconsideration. 31
We now take up the first argument that if indeed the accused were a drug pusher, he would not sell a marijuana to a stranger at a public place and in full view of the other people. This Court has already ruled in a number of cases that in real life, small quantity or retail drug pushers sell their prohibited wares to customers who have the money to pay for the drug, be they strangers or not; what matters is not existing familiarity between the buyer and the seller but their agreement and the acts constituting the sale and delivery of the prohibited
drug. 32 This Court also said that drug pushing, when done on a small level, belongs to that class of crimes which may be committed at any time at any place. After the offer to buy is accepted and the exchange is made, the illegal transaction is completed, and the whole deal taking only a few minutes. That the parties are in a public place and in the presence of the other people may not always discourage them from pursuing their illegal trade — these factors may even serve to camouflage the transaction. 33 Hence, this Court has sustained the convictions of drug pushers caught selling illegal drugs in a billiard hall, 34 in front of a store, 35 along a street at 1:45 p.m., 36 and in front of a house. 37
We are convinced beyond doubt that what took place in this case was an entrapment, an effective method of apprehending drug peddlers. 38 The positive testimonies of the NARCOM agents in this case, against whom no improper or ulterior motive was established, deserve full faith and credit. No proof to the contrary having been made, they are presumed to have regularly performed their duties. 39 The sweeping accusation made by the counsel for the accused against the law enforcers is unfounded, if not irresponsible, since he offered no proof whatsoever in support of his allegations.
WHEREFORE, the instant appeal is DISMISSED and the challenged Decision of Branch 57 of the Regional Trial Court of Angeles City in Criminal Case No. 12502 is hereby AFFIRMED in toto.
Cruz, Bellosillo, Quiason and Kapunan, JJ., concur.
#Footnotes
1 Original Records (OR), 1; Rollo, 3.
2 Rollo, 9.
3 TSN, 28 January 1991, 13.
4 TSN, 25 February 1991, 3.
5 Id., 4.
6 TSN, 11 February 1991, 4.
7 TSN, 25 February 1991, op. cit., 3-4.
8 TSN, 28 January 1991, op. cit., 4, 9.
9 TSN, 28 January 1991, 9; TSN, 11 February 1991, 6.
10 Exhibits "A" and "B."
11 Exhibits "E" and "F."
12 TSN, 28 January 1991, op. cit., 4-7.
13 Id., 12.
14 TSN, 6 November 1990, 2-3; Exhibit "C."
15 TSN, 19 March 1991, 3-13.
16 TSN, 12 March 1991, 2-6.
17 TSN, 14 May 1991, 2-4.
18 OR, 104-109, 110; Rollo, 15-20, 21. Per Judge Monina A. Zenarosa.
19 Id., 109; Id., 20.
20 OR, 115.
21 Rollo, 38-45.
22 Id., 38.
23 Id., 40.
24 Id.
25 Rollo, 41.
26 Id.
27 Rollo, 42.
28 Id., 43.
29 Sections 34 and 35, Rule 132.
30 People vs. Dela Cruz, 207 SCRA 632 [1992].
31 OR, 112-114.
32 People vs. Sanchez, 173 SCRA 305 [1989]; People vs. Fernandez, 209 SCRA 1 [1992]; People vs. Madriaga, 211 SCRA 698 [1992].
33 People vs. Paco, 170 SCRA 681 [1989]; People vs. Pablo, 213 SCRA 1 [1992].
34 People vs. Rubio, 142 SCRA 329 [1986].
35 People vs. Khan, 161 SCRA 406 [1988].
36 People vs. Toledo, 140 SCRA 259 [1985].
37 People vs. Policarpio, 158 SCRA 85 [1988].
38 People vs. Gatong-o, 168 SCRA 716 [1988].
39 People vs. Tejada, 170 SCRA 497 [1989]; People vs. Marcos, 185 SCRA 154 [1990]; People vs. William, 209 SCRA 808 [1992].
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