SECOND DIVISION
G.R. No. 135378 April 14, 2004
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
ANGELITO AMBROSIO y CAMPOS, ROMAN OZAETA y LAO and WARREN QUE alias WEDDY, WILLY, SHAO WEI GUO, QUE SIAO UY, respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Before us is an appeal by way of a petition for review on certiorari of the decision,1 dated August 31, 1998, rendered by the Regional Trial Court (RTC), Branch 103, Quezon City in Criminal Case No. 97-71733, convicting appellants Angelito Ambrosio,2 Roman Ozaeta3 and Warren Que of the offense of selling 750.02 grams of shabu in violation of R.A. No. 6425, as amended by R.A. No. 7659 (Dangerous Drugs Law) and sentencing Que, as principal, to reclusion perpetua and imposing upon him a fine of ₱2,000,000.00; and Ambrosio and Ozaeta as accomplices, to suffer imprisonment for a period of six years, one month and one day of prision mayor as minimum to fourteen years, eight months and ten days of reclusion temporal and to pay a fine of ₱1,000,000.00 each.4
Appellants Ambrosio, Ozaeta and Que were charged in an Amended Information5 filed by the prosecution, as follows:
The undersigned State Prosecutor of the Department of Justice accuses ANGELITO AMBROSIO y CAMPOS, ROMAN JOSE OZAETA y LAO and WARREN QUE alias WEDDY, WILLY GUO, SHAO WEI GUO, QUE SIA UY of the crime of violation of Section 15, Article III of Republic Act No. 6425, as amended by Republic Act No. 7659, committed as follows:
That on or about February 20, 1997, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, with deliberate intent and without authority of law, did then and there, willfully, unlawfully and feloniously sell and deliver to a poseur-buyer 1,001.61 grams of methamphetamine hydrochloride (shabu), which is a regulated drug.
CONTRARY TO LAW.
Manila for Quezon City, Philippines.
July 14, 1997.6
Appellants entered their respective pleas of not guilty. After trial on the merits, the RTC rendered herein assailed judgment, the dispositive portion of which reads:
ACCORDINGLY, judgment is hereby rendered finding:
1. WARREN QUE, alias Weddy, Willy Guo, Shao Wei Guo or Que Siao Uy, GUILTY beyond reasonable doubt of the offense of selling 991.7 grams of methamphetamine hydrochloride with a purity weight of 750.02 grams as a PRINCIPAL thereto in violation of R.A. 6425, as amended (Dangerous Drugs Law) and he is hereby sentenced to suffer an imprisonment term of Reclusion Perpetua and to pay a fine of Two Million Pesos;
2. ANGELITO AMBROSIO y CAMPOS and ROMAN JOSE OZAETA y LAO are found GUILTY beyond reasonable doubt as ACCOMPLICES of accused WARREN QUE in the same of 991.7 grams of methamphetamine hydrochloride with a purity weight of 750.02 grams in violation of R.A. 6425, as amended (Dangerous Drugs Law) and each of said accused is ordered to suffer an indeterminate jail term of six (6) years, one (1) month and one (1) day of Prision Mayor as minimum to Fourteen (14) years, eight (8) months and ten (10) days of Reclusion Temporal and to pay a find of One Million Pesos each, respectively.
The methamphetamine hydrochloride or shabu involved in this casE are ordered disposed of and/or destroyed in accordance with law upon finality of this judgment.
SO ORDERED.
In convicting appellants, the trial court found the version of the prosecution evidence more credible and held that the defense failed to overcome the presumption that official duty has been regularly performed by the NBI agents. Hence, the present petition.
Pending resolution of the appeal, that is on January 10, 2001, appellant Ambrosio, acting on his own, filed with us a Motion to Withdraw Appeal. A similar motion was filed by his lawyer on January 22, 2001. Thus, per Resolution dated February 5, 2001, we granted Ambrosio’s motion to withdraw appeal and consequently, his appeal was dismissed.
Appellant Que filed his Brief raising the following Assignment of Errors:
I. The trial court erred in concluding that there was a buy-bust operation on February 20, 1997 at the residence of accused Warren Que when there was none at all.
II. The trial court erred in holding that accused Warren Que was caught in flagrante delicto selling the regulated drug on the occasion of the alleged buy-bust operation.
III. The trial court erred in holding that the fluorescent powder found in the hand of accused Warren Que was sourced from handling chemically treated money.
IV. The trial court erred in assigning to the acts of the NBI agents Martin Soriano and Pio Palencia in the alleged buy-bust operation the presumption of regularity in the performance of official duty and, corollarily, shifting the burden of overcoming it upon the defense.
V. The trial court erred in refusing to require the prosecution to identify the alleged confidential informant named ‘Venus’ and, consequently, depriving accused-appellant Warren Que, his fundamental right to confront and cross examine her.
VI. The trial court erred in discrediting as implausible, the defense of accused Warren Que.
VII. The trial court erred in not finding him innocent of the crime charged, and instead found him guilty thereof.7
Appellant Ozaeta filed his Brief raising the following issues:
III. ISSUES
WHETHER OR NOT THE TRIAL COURT ERRED IN CONVICTING OZAETA ON THE MAIN BASIS OF PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF OFFICIAL DUTY.
WHETHER OR NOT THE TRIAL COURT ERRED IN HOLDING ACCUSED OZAETA AS AN ACCOMPLICE, AND COROLLARY THERETO, WHETHER OR NOT THE TRIAL COURT ERRED IN CONVICTING OZAETA AS ACCOMPLICE DESPITE THE WEAK AND VAGUE EVIDENCE OF THE PROSECUTION.
WHETHER OR NOT THE TRIAL COURT ERRED IN CONVICTING OZAETA DESPITE THE FACT THAT THE POSEUR-BUYER VENUS WAS NOT PRESENTED BY THE PROSECUTION AS A WITNESS.
WHETHER OR NOT THE TRIAL COURT ERRED IN CONVICTING OZAETA DESPITE THE TESTIMONY OF THE FORENSIC CHEMIST, MS. JULIETA FLORES, THAT OZAETA COULD NOT HAVE TOUCHED THE MARKED MONEY.
WHETHER OR NOT THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED DESPITE THE FACT THAT THE MARKED MONEY WAS NOT PRESENTED AS EVIDENCE.8
The errors assigned by appellant Que and the issues raised by appellant Ozaeta boil down to the following questions: (1) whether the participation of appellants Ozaeta and Que in the illegal sale of methamphetamine hydrochloride or shabu was proven beyond reasonable doubt; and (2) whether or not the trial court erred in basing the conviction of appellants on mere presumption of regularity in the performance of the official duties of the arresting officers. We will resolve them jointly as they are inter-related to each other.
Section 3(m), Rule 131 of the Rules on Evidence, provides:
SEC. 3. Disputable presumptions. – The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence:
. . .
(m) That official duty has been regularly perfomed;
. . .
It is a well-settled rule that credence should be given to the narration of an incident by prosecution witnesses who are police officers and presumed to have performed their duties in a regular manner in the absence of evidence to the contrary.9 But, it is likewise a hornbook doctrine that an accused may not be convicted on the basis of a mere presumption. As we ruled in People vs. Tan:10
The presumption of regularity in the performance of official duty cannot be used as basis for affirming accused-appellant’s conviction because, [f]irst, the presumption is precisely just that – a mere presumption. Once challenged by evidence, as in this case, xxx [it] cannot be regarded as binding truth. Second, the presumption of regularity in the performance of official functions cannot preponderate over the presumption of innocence that prevails if not overthrown by proof beyond reasonable doubt.11
In the face of these jurisprudential rulings, it is imperative that we examine the evidence presented before the trial court so as to determine whether or not the trial court had actually no basis in convicting appellants and merely relied on the disputable presumption that official duty has been regularly performed.
The facts established by the prosecution evidence are as follows:
A civilian informant reported to Agent Martin Soriano of the National Bureau of Investigation (NBI) of the illegal activities of appellant Ozaeta and accused Ambrosio. Surveillance activities were conducted on Ozaeta and Ambrosio beginning February 15, 1997. The civilian informant was able to contact a certain Grace, who is a trusted buyer of Ozaeta and Ambrosio, and introduced her to a confidential agent they call "Venus." A first meeting at the Aristocrat restaurant was arranged between Grace and Ambrosio, but the transaction did not push through due to some disagreement regarding the money and place of delivery. Another meeting at a hotel in Pasig did not bring about the expected transaction. Subsequently, Ozaeta and Ambrosio agreed to meet with Venus on February 20, 1997, at around 1:30 in the morning, in front of Club Filipino, Greenhills, San Juan.12 Palencia and Soriano then prepared the buy-bust money, including some bills that had been previously marked and dusted with fluorescent powder.13
In the early morning of February 20, 1997, NBI Agent Soriano and confidential informant Venus proceeded to the meeting place in front of Club Filipino in Greenhills. Venus spotted the Nissan car of Ambrosio near Ciudad Fernandina, which is about twenty meters away from the front of Club Filipino. Soriano and Venus then approached Ambrosio’s car and inside they found Ambrosio and Ozaeta. Soriano said that at first, he believed the exchange would take place right there in front of Club Filipino. However, after Soriano was introduced to Ambrosio and Ozaeta, the latter asked Soriano and Venus to board the car being driven by Ambrosio.14 Agent Soriano and Venus sat at the back seat and upon boarding, Ambrosio and Ozaeta told them they wanted to see the money. Venus then opened the brown bag containing the buy-bust money and they scanned the money bundle by bundle but did not count it.15 The buy-bust money consisted of ten pieces of marked and dusted ₱100.00 bills placed on top of the bundles of genuine money amounting to around ₱400,000.00 and the boodle money was placed at the very bottom of the bag to make it appear that the money amounted to ₱650,000.00, the price they agreed upon for the sale of one kilo of shabu.16 Ambrosio then started driving towards Quezon City. All this time, Special Investigator Palencia and one Allan Santiago, also from the NBI, were in a separate car around ten to fifteen meters away tailing Ambrosio’s car. At around 2:45 to 3:00 in the morning, Ambrosio eventually stopped at an apartment in Mindanao Avenue, Quezon City. He parked his car in front of the door of the first apartment of the compound known as Villa Concepcion, located on a corner lot.17 Palencia parked their car around the corner, about five meters away from Soriano, where he could still see everything that was happening.18
Upon arrival at the apartment, Ambrosio and Venus alighted from the car while Ozaeta and Soriano remained inside the car, parked around five meters away from the door of the apartment. Since the place was well-lighted, Soriano clearly saw everything that was happening.19 Ambrosio and Venus rang the doorbell at the main door of said apartment and a Chinese looking man, who was later identified as appellant Que, opened the door. After a short conversation with Ambrosio and Venus, Que went back inside the house and immediately came out again with a plastic bag containing the white crystalline powder which he handed to Venus. The latter checked the contents of the plastic bag then handed over to Que the bag containing the buy-bust money. Que unzipped the bag and inspected the cash inside. At that point, Venus pressed a radio transmitter as the sign for the back-up to arrest Que. Soriano, as well as Palencia and Santiago, immediately alighted from their respective cars and approached the apartment. Que ran inside the apartment with the bag of buy-bust money but he was accosted by the NBI agents near the stairs leading to the second floor of the apartment.20 Ambrosio and Venus ran back into Ambrosio’s car and that was where NBI agent Santiago arrested Ozaeta and Ambrosio. After the arrest, Special Investigator Palencia also found in the possession of Ambrosio three small plastic bags or sachets of the same white crystalline substance, while Ozaeta had a cream round container and a glass tube also containing the same substance.21
Thereafter, the NBI agents brought Que, Ambrosio and Ozaeta to the NBI Headquarters in Taft Avenue, Manila, arriving at said headquarters at around 5:30 in the morning.22 Palencia proceeded with the marking of the plastic bag containing the white crystalline powder recovered from Que and the containers with a similar substance recovered from Ambosio and Ozaeta for purposes of identification. Palencia also requested the forensic chemist to examine the contents of the plastic bag and sachets recovered from the accused. Appellants were fingerprinted and made to fill-up the Booking and Arrest Report and Investigation Sheet, then subjected to the ultra-violet light test to determine the presence of the fluorescent powder on their hands.23
NBI Forensic Chemist Salud Rosales, who conducted the requisite tests on the white crystalline powder recovered from appellants, testified that all specimens submitted to her were positive for methamphetamine hydrochloride, more popularly known as shabu.24 The presiding judge ordered that tests be conducted on the substance contained in the big plastic bag recovered from appellant Que to determine its purity and the same forensic chemist reported that out of the 991.7 grams of said substance, the weight of pure methamphetamine hydrochloride was 750.02 grams.25
NBI Chemist Julieta Flores who dusted the marked money and examined the hands of the appellants reported that both hands of appellants were contaminated with the fluorescent powder dusted on the ten ₱100.00 bills placed on top of the buy-bust money.26 On cross-examination, she admitted that she heard the appellants say that they were merely forced to hold the marked money, but she does not recall them say anything about Agent Soriano shaking hands with them.27 She also stated that based on the pattern or placement of the specks and smudges of fluorescent powder on the hands of appellants, it is most possible that appellant Que and accused Ambrosio have touched the buy-bust money, while there is a possibility that appellant Ozaeta did not touch said money.28
Countervailing the prosecution evidence, the defense witnesses testified that no such buy-bust operation was conducted. They insist that the NBI agents illegally abducted them and then planted the evidence. Appellants Que and Ozaeta as well as accused Ambrosio denied knowing each other prior to their alleged abduction and claim that they only learned the names of their co-accused when they were already at the NBI Headquarters.
Appellant Ozaeta testified as follows: At around 5:00 in the afternoon of February 19, 1997, he was having merienda at Club Filipino in Greenhills, San Juan. After eating, he went out to buy cigarettes from one of the street vendors and while walking along the street, he was abducted by NBI Agent Soriano.29 During cross-examination, however, he stated that it was actually two men who accosted him and pushed him inside a waiting Land Cruiser.30 Inside the vehicle, there was already another man who was handcuffed. Four other men, who identified themselves as NBI agents, were
also in the Land Cruiser. Both he and the other person, who he later came to know at the NBI Headquarters as Sonny Ambrosio, were blindfolded. The vehicle roamed around for some time and then they were brought to what he believes is a safehouse somewhere in Project 6, Quezon City.31 In the safehouse, he and Ambrosio were beaten up by the NBI agents and were asked questions about shabu. Around 8:30 to 9:30 that night of February 19, 1997, the NBI men took him (Ozaeta) with them to a place in West Triangle where the NBI men talked to a certain Tony Ledesma. The latter called up Joel Tan who arrived at around 12:30 or 1:30 in the early morning of February 20, 1997. Joel Tan was brought back to the safehouse in Project 6 and placed in the same room with him. Joel Tan who was also beaten up by the NBI men was brought out of the house. After one hour, the NBI men came back bringing with them another person, later identified as appellant Que. The NBI men started beating up Que. As for Ledesma and Tan, he never saw them again.32 At around 4:00 in the morning of February 20, 1997, he, Ambrosio and Que were brought to the NBI Headquarters on Taft Avenue, Manila. They were made to fill up some papers or forms and fingerprinted. Their hands were put under the ultra-violet light to test for the presence of fluorescent powder. He remembered that on their way to the room where their hands were placed under the light, agent Soriano shook hands with the three of them.33
Ozaeta claims that it was through Soriano’s handshake that his (Ozaeta’s) hands were contaminated with the fluorescent powder.
Ozaeta further testified that despite repeated requests with the NBI agents to allow him to call his family, he was never given the opportunity to communicate with them.34 On cross-examination, he testified that he or his family did not file a case against the NBI agents who allegedly abducted him.35
Accused Ambrosio’s recollection of the incident is as follows: In the afternoon of February 19, 1997, he received a telephone call from a certain Venus who mentioned the name of his friend Pepe Dadivas. Thus, he agreed to have a date with Venus at Club Filipino in Greenhills. At around 5:00 or 6:00 in the afternoon, after dropping off his wife at their store in Shoppesville, located also in Greenhills, he drove his Nissan Sentra car towards Club Filipino. While looking for a parking space in front of Club Filipino, a Land Cruiser blocked his car and several armed men wearing black shirts with NBI markings alighted from said Land Cruiser. They pointed their guns at him, handcuffed him and loaded him into the Land Cruiser.36 Around five minutes later, another handcuffed man was loaded into the same vehicle. They were then both blindfolded. Later, when they were already at the NBI Headquarters, he came to know the other man
loaded into the vehicle as appellant Ozaeta. He claims that both he and Ozaeta were beaten up by the NBI men while they were inside the Land Cruiser. They were then taken to what he believes is an NBI safehouse where he was kept in a room, handcuffed and blindfolded the whole time. At around twelve o’clock midnight or 1:00 in the early morning of February 20, 1997, he heard voices which he believed to be those of the NBI men bringing another person into the safehouse. He heard that person begging for mercy, and shortly thereafter, the NBI men went away again. About an hour later, the NBI men came back with another man, whom he later came to know as appellant Que.37
At around 3:00 or 4:00 in the morning of February 20, 1997, they were all brought to the NBI Headquarters in Taft Avenue, Manila. From this point on, his narration of events is the same as that of appellant Ozaeta, specially with the detail regarding Agent Soriano’s handshake.38
To corroborate the story of appellant Ozaeta and accused Ambrosio, the defense presented Rodolfo Banaga, a street vendor. He narrated that at around 6:30 to 7:00 in the evening of February 19, 1997, he was vending in front of the Club Filipino, when he noticed three male persons wearing black t-shirts with the letters NBI printed at the back, arrest a man who just came out of the Club Filipino. The arrested man was handcuffed then pushed into a waiting vehicle. When the door of the vehicle was opened, he saw that there was already another person inside the same. During the hearing in court, he pointed to appellant Ozaeta as the person who was arrested and pointed to accused Ambrosio as the person who was already inside the vehicle. On cross-examination, however, he admitted that when this incident was happening, he was quickly moving away, such that, when the rear door of the vehicle was opened, he was already positioned at the back of said vehicle.39
Another defense witness, Eugenio de la Torre, the security guard assigned at the parking lot of the Club Filipino on the evening of February 19, 1997, only stated that the car of Roman Ozaeta was parked at the Club Filipino from the evening of February 19 until February 22, 1997, when he released the car to a Sgt. Willy Cocjin, sent by General Ozaeta.40
Appellant Que, for his defense, testified as follows: At around 3:00 or 4:00 in the early morning of February 20, 1997, he was sleeping with his family (wife and two children) in their bedroom located on the second floor of his townhouse in Project 6, Quezon City. He was awakened by his wife, telling him that her father was knocking at their bedroom door. At around that time, he also heard someone throw a stone at the window. He got up and went downstairs so he could open the door and when he was already downstairs, he saw his father-in-law peeping out the window who did not see anybody outside the apartment.41 When he (Que) opened the door, he also did not find anyone there, so he went back inside the house and got a glass of water. However, upon turning around, he was surprised to see several people entering his house. Said persons were wearing black clothes with NBI markings. Later at the NBI Headquarters, he came to know the names of some of those people as Agent Soriano, Palencia, and Santiago. When the NBI people gained entry into his house, Soriano started asking him about a certain William and a Mr. Tan. He answered that there were no such persons in his house.42 Agent Soriano, together with Santiago and a lady agent, went upstairs. Palencia remained downstairs guarding him, his father-in-law, his wife and two children. When the three agents came down, they had with them a brown wine bag belonging to him (Que), which he claims is the very same bag that was later shown in court by Agent Soriano as the one that contained the buy-bust money. He asked the NBI men if they had a warrant but they did not answer him. They just proceeded to handcuff him then loaded him into a waiting Nissan car outside his house. While inside the car which roamed around their subdivision for a while, Palencia forced him to count one by one the ten pieces of ₱100.00 bills.43
Later, the car stopped and brought him into a house not too far away from his own house. There, they locked him inside the comfort room. The only maltreatment he received was when Palencia hit him in the chest once. At around 6:00 in the morning of February 20, 1997, he, Ozaeta and Ambrosio were brought to the NBI Headquarters in Taft Avenue, Manila. Again, from this point, his story as to what transpired at the NBI Headquarters is the same as those of Ozaeta and Ambrosio.44
Que’s common-law wife, Ligaya Melgar, also testified in Que’s defense. She testified as follows: At around 4:00 in the morning of February 20, 1997, her father woke her up because there was someone knocking at the door. Her father did not open the door because he did not know the person at the door. She woke up Que who then went downstairs, while she went back to bed. About three minutes later, she heard a commotion downstairs so she got up and went downstairs. On her way down the stairs, she already saw two men and one woman, holding firearms, on their way up the stairs. These people wore clothes with NBI markings. She saw them enter their bedroom, and she proceeded downstairs to look for Que. There, she saw Que being guarded by two persons. She asked these persons if they have a search warrant or a warrant of arrest but they said they did not need one. They then asked her the name of her husband and if she knows a certain William Tan or Joel Tan, and she told them that there were no such persons in the house.45
After talking to the men guarding Que, she went back upstairs and saw the three NBI agents searching all their rooms then taking their belongings and putting them inside the wine bag. Ligaya claims the agents took jewelries, a video camera, and money both in Philippine and foreign currencies amounting to several hundred thousand pesos.46
Leopoldo Melgar, appellant Que’s father-in-law residing in Mabalacat, Pampanga, testified that he arrived at the house of his daughter and Que at around 11:00 in the morning of February 19, 1997. He slept at said house that evening, but in the early morning of the next day, around 4:00, a knocking at the door awakened him. He then woke up his daughter, Ligaya, who in turn woke up her husband, appellant Que. Que went downstairs and after hearing more knocks, opened the door. When the door opened, two men entered the house, followed by another man a few minutes later. Said persons were wearing NBI vests. They then asked Que if he is William. When Que denied that he is William, one of the men poked a gun at Que and insisted that the latter is indeed William. One of the men and a woman went up to the second floor of the house. Later, the NBI people brought Que out of the house.47
In attacking the credibility of the prosecution witnesses and their testimonies, appellants assail the non-presentation in court of the buy-bust money and the confidential agent Venus, who actually negotiated with the three accused. They argue that the non-presentation of poseur-buyer Venus shows that no such person exists, thereby reinforcing their claim that no buy-bust operation ever happened in this case. They further claim that only Venus could testify on what was really agreed upon between her and appellant Que. It is further argued by appellants that the lower court relied too much on the presumption of regularity of performance of official duty in giving credence to the buy-bust account presented by the prosecution witnesses.
Appellant Que invokes the ruling of the Court in People vs. Bagano48 where the non-presentation of the informant and/or the poseur-buyer who actively participated in the negotiation for the sale of prohibited drugs was held to be fatal to the prosecution’s case, leading to the acquittal of the accused therein. However, the Bagano case cannot find application to the present case because the special circumstance attending the buy-bust operation in said case does not exist in the present case.
In the Bagano case, the poseur-buyer was an American who did not understand a word of the Kankanai dialect being spoken by the accused therein. Thus, the informant had to act as an interpreter between the American poseur-buyer and the accused. Only the American poseur-buyer testified as to how they entrapped the accused therein and he was able to testify only as to what the informant/interpreter relayed to him as the supposed answers given by the accused in the course of the buy-bust operation. The accused therein, however, disclaimed ownership of the bag containing the marijuana, explaining that said bag actually belonged to the
informant and he was merely ordered by said informant to carry the bag. Thus, the Court held that the presentation of the informant who acted as interpreter is vital to the case for the prosecution since the testimony of the American poseur-buyer regarding the actual conversation between the interpreter and the accused in the Kankanai dialect would be merely hearsay.
In People vs. Uy,49 the prosecution was not able to present the actual poseur-buyer on the witness stand. Just like in this case, only the other members of the buy-bust team, who were twenty meters away, closely watching the exchange between the poseur-buyer and the accused, testified as to how the buy-bust operation was conducted. The prosecution explained in the Uy case that they could not present the actual poseur-buyer because he was then in the hospital, paralyzed due to gunshot wounds. We held in said case that:
We have previously declared that what can be fatal is the non-presentation of the poseur-buyer if there is no other eyewitness to the illicit transaction. In the case at bar, the other members of the team that conducted the buy-bust operation testified in court. They declared that they witnessed the consummation of the illegal sale perpetrated by the accused-appellant. Hence, their positive identification of the accused-appellant rendered the non-presentation of the poseur-buyer non-fatal to the case of the prosecution. . . .
. . .
A buy-bust operation has been considered as an effective mode of apprehending drug pushers. If carried out with due regard to constitutional and legal safeguards, a buy-bust operation deserves judicial sanction. The delivery of the contraband to the poseur-buyer and the receipt by the seller of the marked money successfully consummates the buy-bust transaction between the entrapping officers and the accused.50
In the present case, the non-presentation of Venus was also satisfactorily explained, i.e., that she was working on another buy-bust operation. Although her identity is known to herein appellants, to require her to testify in open court would divulge her real identity and expose her to danger considering that there was another buy-bust operation that was still on-going.
In People vs. Boco,51 we held:
Intelligence agents, due to the nature of their work, are often not called to testify in court so as not to reveal their identities publicly. Once known, they could no longer be used again and, worse, may be the object of revenge by the criminals they implicate. The prevailing doctrine is that their testimonies are not essential for conviction, nor are they indispensable to a successful prosecution. With the testimonies of the arresting officers, they would be, after all, merely corroborative and cumulative.
Verily, we see no reason to rule that the inability to present Venus would be fatal to the prosecution’s case. The testimony of NBI Agent Soriano, corroborated by SI Palencia, that he (Soriano) was merely five meters away from appellant Que and Venus and could clearly see when Que handed over to Venus the plastic bag containing the white crystalline substance and in exchange, Que received from Venus the bag containing the buy-bust money, is enough to sustain the findings of the trial court that, indeed, the illegal sale of shabu between Venus and Que was consummated.
Furthermore, as originally planned, Soriano was designated as the poseur-buyer, but the buy-bust operation did not proceed exactly as the team had planned or anticipated. Agent Soriano thought that the transaction would be consummated at Greenhills, for which reason, they planned to entrap only appellant Ozaeta and Ambrosio. It was only when Ambrosio brought them to the house of appellant Que that they learned of the latter’s activities.52 It could be said, therefore, that the buy-bust operation proceeded in two phases. The first phase was what the buy-bust team had planned, i.e., that the operation would be completed at Greenhills where the sale was supposed to be consummated; and the second phase had to be carried out when, unexpectedly, Ambrosio did not bring with him the shabu and instead brought Soriano and Venus to Que’s residence. Understandably, with such sudden and unexpected turn of events, the buy-bust team had to make the necessary adjustments and changes to their original plans which could explain why it was eventually Venus who accompanied Ambrosio to Que’s door.
With regard to appellant Que, after a close scrutiny of the entire records of the case, we find no fact or circumstance of special importance that would justify overturning the ruling of the court a quo regarding the credibility of the prosecution witnesses and their testimonies. The prosecution successfully proved the existence of all the elements necessary for conviction for the offense of illegal sale of regulated or prohibited drugs, to wit: (1) the identity of the buyer and the seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment therefor.53
In People vs. Mala, et al.,54 we held that what is material is the proof that the transaction or sale actually took place, coupled with the presentation in court of the corpus delicti. The delivery of the contraband to the poseur-buyer and the receipt of the marked money consummated the buy-bust transaction between the entrapping officers and the accused."
Anent the buy-bust money, the prosecution merely presented photocopies of the marked money used in the buy-bust operation. The trial court is correct in not considering the non-presentation of the entire amount thereof as a mortal blow to the prosecution’s case. We have held in People vs. Eugenio55 presentation of buy-bust money is not indispensable to the prosecution of a drug case."56
Appellants’ asseveration that the lower court merely relied on the presumption of regularity of performance of official duty in arriving at its decision and in giving more credence to the buy-bust account presented by the prosecution, is not plausible. It is on the basis of the positive testimonies of prosecution witnesses that the trial court based the conviction of appellants Que.
We find no compelling reason to reject the ratiocination of the trial court in not giving more credence or probative weight to the testimonies of the witnesses, in defense of appellant Que, to wit:
. . .
3. Accused Warren, his wife Ligaya and her father testified that the NBI agents arrived in their townhouse at between 4:00 and 5:00 in the morning of February 20, 1997. One of the things the NBI agents repeatedly asked them was where is Joel Tan. Yet, according to accused Ozaeta, NBI agents already had Joel Tan with them in the house of Tony Ledesma just after midnight of February 19, 1997. The agents brought Joel Tan to the Project 6 safehouse, beat him there, and took Joel Tan away at around 2:30 that same early morning. Why should agents Palencia, Soriano and Allan then be still looking for Joel Tan from Warren at 4:00 o’clock in the morning when they had Joel Tan all along already? Only contrived stories could suffer from such deficiencies.
. . .
6. Mrs. Ligaya M. Que’s testimony and that of her father are understandably favorable to Warren. The testimonies of those two witnesses and Warren’s however, contain major incongruities, namely:
(a) Warren said he went downstairs to open the door because someone was throwing stones on their window. Ligaya and her father testified someone knocked on the door.
(b) Ligaya testified that on February 19, 1997 she left the house at 12:00 noon to go to Angeles City while Warren stayed at home. On cross, Ligaya said Warren left between 10:00 and 11:00 in the morning and returned at 4:00 in the afternoon on February 19, 1997.
Ligaya’s father testified that he arrived at the townhouse on February 19, 1997 and he found Warren there and Warren stayed the whole day and night in the townhouse leaving only when he asked Warren to buy paint at 7:00 in the evening.
On the other hand, Warren testified that he arrived at his house on February 19, 1997 at 11:00 in the evening.
. . .
9. The three accused claimed that the reason their hands were found positive for nitrates is because Agent Soriano shook hands with them before their hands were clinically examined.
The court disagrees because:
a) Warren testified that even inside the car that took him agent Palencia forced him to count the marked bills and even rubbed his hands with Palencia’s hands. If that were so, then there is no need anymore for agent Soriano to shake hands with him. Agent Soriano was, after all, in the same car and therefore knew of such event if it really took place.
b) Warren’s counsel on cross-examination of Ms. Julieta Flores, the NBI chemist who examined the hands of the accused, tried his best to point out that no nitrates were found on the fingertips of Warren which would negate the prosecution’s theory that Warren rifled through the bag’s contents during the buy-bust. If, as admitted, no nitrates were found on Warren’s fingertips as to negate the prosecution’s theory, then the very expostulation itself of Warren’s counsel on this point would negate the claim of Warren twice made – in his affidavit and in court as a witness – that he was made to count the dusted bills one by one.
As will be shown below there was a good reason for the absence of nitrates on Warren’s fingertips as well as those of accused Ambrosio and Ozaeta.
c) The defense itself, that is, all three accused called for the production of the Booking Sheet and Arrest Report (Exhibits 1, 2 and 9 for Ambosio and Exhibits 3 and 20 for Ozaeta). The Booking Sheet for Warren was not offered in evidence but he also admitted that he was made to fill it up and was fingerprinted thereon.
An examination of said Booking Sheets and Arrest Reports shows that the accused were fingerprinted on both hands involving all fingers, an SOP in law enforcement procedure. That was done at the SID room before the accused were brought to the laboratory room.
According to chemist Julieta Flores, nitrates, unlike paraffin powder, are easy to remove; they can be removed from the hands by simply cleaning one’s hands with water. Consequently, it is easy to understand why the fingertips of all accused had no nitrates: All fingers on both hands were dipped in ink in a stamp pad and then pressed on the Booking Sheet and Arrest Report (Pinagpiano in lock parlance) and hence, the easily removable nitrates were left there.
d) The marked money bills were dusted on February 7, 1997 yet and used in another operation in Pasay City; hence, were not anymore as thickly dusted when used again on February 19, 1997 against the herein accused which account for why spots, specks and smudges were the ones that appeared when the hands of the accused were exposed to the lab light at NBI.
e) Indeed, the "handshaking" defense raised here appears quite specious because if indeed Agent Soriano shook hands with the accused, then the presence of nitrates in their fingers would be inevitable for it must be assumed that if Agent Soriano indeed had a sinister purpose against the accused, he would have made sure that the fingers and palms of all three or, at least one or two of them will be impregnated with nitrates. Moreover, one shakes another’s hand with only one hand and also only one hand of the person whose hand is to be shook. But, in this case, both hands of each of the accused were found positive for nitrates. There is no evidence, and it seems really unusual, that Agent Soriano will shake the right hand and then the left hand of each accused. Agent Soriano, to all appearances, seems to be a machoman.
The court thus concludes that the positive identification herein made by the prosecution witnesses and the presumption of regular performance of duty have not been successfully overcome by the accused.57
In People vs. Pacis, we held that:
. . . courts generally give full faith and credit to officers of the law, for they are presumed to have performed their duties in a regular manner. Accordingly, in entrapment cases, credence is given to the narration of an incident by prosecution witnesses who are officers of the law and presumed to have performed their duties in a regular manner in the absence of evidence to the contrary.58
The defense failed to demonstrate any ill-motive on the part of the prosecution witnesses in effecting the buy-bust operation and testifying against appellants. Testimonial evidence presented by the prosecution show that Que was not initially the target of their operation, since their informant only mentioned the activities of appellant Ozaeta and Ambrosio. As we have earlier discussed, agent Soriano thought that the transaction would be consummated at Greenhills, for which reason, they planned to entrap only appellant Ozaeta and Ambrosio. It was only when Ambrosio brought them to the house of appellant Que that they learned of the latter’s activities.59 Hence, there is no cause for us to believe that the prosecution witnesses testified falsely against appellant Que.
We reiterate our ruling in People vs. Cueno60 that in the absence of proof of any odious intent on the part of the police authorities to falsely impute a serious crime, such as that made against herein appellant, we will not allow their testimony to be overcome by the self-serving and uncorroborated claim of frame-up.61
In People vs. Mala, et al., we enunciated that this Court will not interfere with the trial court’s assessment of the credibility of witnesses except when there appears on record some fact or circumstance of weight and influence which the trial court has overlooked, misapprehended, or misinterpreted. The reason for this rule is that the trial court is in a better position to decide the question, having heard the witnesses themselves and observed their deportment and manner of testifying during the trial.62
The testimonies of the prosecution witnesses are positive and convincing, sufficient to sustain the finding of the trial court that appellant Que’s guilt had been established beyond reasonable doubt. Thus, as we have earlier stated, insofar as appellant Que is concerned, his claim that in convicting him, the trial court merely relied on the presumption that official duty has been regularly performed, is without merit.
However, the prosecution evidence does not clearly establish the participation of appellant Ozaeta in the sale of shabu. Despite the fact that the Court gives full faith and credit to the testimonies of prosecution witnesses, such evidence, even without taking into account the "frame-up" defense raised by Ozaeta, is insufficient to prove that said appellant had a hand in the illegal sale of shabu by appellant Que.
Prosecution witnesses SI Palencia and agent Soriano were not present during the preliminary meetings among Venus, Grace, Ambrosio and Ozaeta. Hence, they did not have personal knowledge, as in fact, they did not testify if it was Ambrosio or Ozaeta or both of them who were actively negotiating for the sale of shabu. From the testimonies of SI Palencia and agent Soriano, who were the only eye-witnesses presented in court, Ozaeta was merely in the car with Ambrosio when they met at Greenhills and he stayed in the same car during the entire time that the sale transaction was going on at Que’s front door on the fateful morning of February 20, 1997. There was no evidence presented that appellant Ozaeta participated in the sale of shabu between Que and Venus. Both SI Palencia and agent Soriano testified that it was Ambrosio who drove the car in going to Que’s residence. Their testimonies do not indicate that Ozaeta was aware of where they were going or what was supposed to transpire once they arrive at their destination. Even if Soriano testified that "they asked to see the money"63 when they were in Ambrosio’s car, there is no direct testimony which shows that Ozaeta himself asked to see the money or that he knew that the money was for the illegal sale of shabu.
Doubts regarding Ozaeta’s participation in the illegal sale of shabu are further fortified by the following facts and circumstances: (1) accused Ambrosio and appellant Ozaeta did not have the shabu with them when they were met by agent Soriano; (2) the trial court failed to mention that NBI Forensic Chemist Salud Rosales’ testified that it is possible that Ozaeta did not touch the buy-bust money;64 and (3) as narrated by SI Palencia and Soriano, it was only Ambrosio who alighted from the car and accompanied Venus to Que’s front door where the illegal sale of shabu was consummated between Venus, the poseur buyer, on the one hand and appellant Que and Ambrosio, on the other. There is no testimony as to the participation or role of Ozaeta in said sale except that he was in the car with agent Soriano.
As held in People vs. Geron,65 the mere presence of the accused at the locus criminis cannot be solely interpreted to mean that he committed the crime charged. In this case, the prosecution evidence which merely showed that Ozaeta was in the company of Ambrosio when they met with agent Soriano at Greenhills and in the car when Ambrosio brought agent Soriano to the front of the house of appellant Que, is not sufficient to prove beyond reasonable doubt that appellant Ozaeta was indeed involved in any way in the illegal sale of shabu. Therefore, appellant Ozaeta must be absolved from criminal liability.
As to the penalty imposed by the trial court on appellant Que, the Court finds the same to be in accord with the provisions of R.A. 6425 as amended by R.A. No. 7659. The penalty prescribed for the consummated sale of 200 grams of shabu without authority of law is reclusion perpetua to death and a fine ranging from ₱500,000.00 to ₱10,000,000.00. Under Article 63 (No. 2) of the Revised Penal Code, the lesser penalty is applied when there are neither mitigating nor aggravating circumstances in the commission of the offense. In the case at bar, the prosecution did not allege or prove the attendance of any modifying circumstance to justify the imposition of the extreme penalty. Hence, the trial court did not err in imposing upon appellant Que the penalty of reclusion perpetua.66
The fine of P1,000,000.00 imposed on appellant Que is just and reasonable.
WHEREFORE, the decision of the Regional Trial Court of Quezon City (Branch 103) dated August 31, 1998 in Crim. Case No. 97-71733 as to appellant Warren Que, finding him guilty beyond reasonable doubt of selling 750.02 grams of shabu and sentencing him to suffer imprisonment term of reclusion perpetua and fining him in the amount of ₱1,000,000.00 is AFFIRMED.
However, as to appellant Roman Ozaeta y Lao, the decision of the Regional Trial Court of Quezon City (Branch 103) dated August 31, 1998 in Crim. Case No. 97-71733 is REVERSED for failure of the prosecution to prove his guilt beyond reasonable doubt. Appellant Ozaeta is ACQUITTED. The Director of the Bureau of Corrections is ordered to
IMMEDIATELY RELEASE Ozaeta unless he is being detained for some other lawful cause, and to inform this Court, within five (5) days from notice hereof, the action taken thereon.
SO ORDERED.
Puno, Quisumbing, Callejo, Sr., and Tinga, JJ., concur.
Footnotes
1 Penned by Judge Jaime N. Salazar, Jr..
2 Referred to as "Sonny" by prosecution witnesses.
3 Referred to as "Romy" by prosecution witnesses.
4 Rollo, p. 54.
5 Record, pp. 83-85.
6 Id., pp. 83-84.
7 Rollo, p. 219.
8 Id., pp. 81-82.
9 People vs. Boholst, 152 SCRA 263, 270 (1987); People vs. Bansil, 304 SCRA 384, 393 (1999).
10 382 SCRA 419 (2002).
11 Id., p. 444.
12 TSN, Testimony of Pio Palencia, August 13, 1997, pp. 16-30; TSN, Testimony of Martin Soriano, October 9, 1997, pp 27-35.
13 TSN, Testimony of Pio Palencia, August 13, 1997, pp. 31-32.
14 TSN, Testimony of Martin Soriano, October 9, 1997, pp. 31-36.
15 TSN, Testimony of Martin Soriano, October 9, 1997, pp. 176, 190-191.
16 TSN, Testimony of Martin Soriano, October 9, 1997, pp. 191-193.
17 TSN, Testimony of Martin Soriano, October 9, 1997, pp. 27-37; TSN, Testimony of Pio Palencia, August 13, 1997, pp. 30-41.
18 TSN, Testimony of Pio Palencia, September 16, 1997, pp. 12-15.
19 TSN, Testimony of Martin Soriano, October 9, 1997, pp. 42-43.
20 TSN, Testimony of Martin Soriano, October 9, 1997, pp. 37-49.
21 TSN, Testimony of Pio Palencia, August 13, 1997, pp. 71-74.
22 TSN, Testimony of Martin Soriano, October 28, 1997, p. 69.
23 TSN, Testimony of Martin Soriano, October 9, 1997, pp. 50-56, 64-66; TSN, Testimony of Pio Palencia, August 13, 1997, pp. 51-57.
24 TSN, August 6, 1997, pp. 37-60.
25 TSN, December 5, 1997, pp. 10, 35.
26 TSN, January 14, 1998, pp. 15-35.
27 TSN, January 14, 1998, pp. 95-97.
28 TSN, January 14, 1998, pp. 40-44.
29 TSN, March 3, 1998, pp. 13-16.
30 TSN, March 27, 1998, pp. 33-34.
31 TSN, March 3, 1998, pp. 16-24.
32 TSN, March 3, 1998, pp. 24-36.
33 TSN, March 3, 1998, pp. 36-61.
34 TSN, March 3, 1998, pp. 44-49.
35 TSN, March 27, 1998, pp. 37-38.
36 TSN, April 17, 1998, pp. 4-10.
37 TSN, April 17, 1998, pp. 11-15.
38 TSN, April 17, 1998, pp. 15-30.
39 TSN, April 1, 1998, pp. 3-17.
40 TSN, April 1, 1998, pp. 19-33.
41 TSN, May 14, 1998, pp. 22-31.
42 TSN, May 14, 1998, pp. 31-36.
43 TSN, May 14, 1998, pp. 37-48, 58-59.
44 TSN, May 14, 1998, pp. 49-67.
45 TSN, May 15, 1998, pp. 6-15, 19.
46 TSN, May 15, 1998, pp. 20-27.
47 TSN, June 8, 1998, pp. 13-39.
48 181 SCRA 747 (1990).
49 338 SCRA 232, 244-246 (2000).
50 Id., pp. 244-246.
51 309 SCRA 42, 62-63 (1999)
52 Testimony of Martin Soriano, TSN, October 9, 1997, pp. 31-36.
53 People vs. Mala, et al., G.R. No. 152351, September 18, 2003.
54 Id.
55 G.R. No. 146805, January 16, 2003.
56 Id.
57 Appealed Decision, Rollo, pp. 103-119.
58 G.R. No. 146309. July 18, 2002.
59 TSN, October 9, 1997, pp. 31-36.
60 298 SCRA 621 (1998).
61 Id., p. 636.
62 G.R. No. 152351, September 18, 2003.
63 TSN, Testimony of Martin Soriano, October 9, 1997, pp. 176, 190-191.
64 TSN, January 14, 1998, pp. 43-44.
65 281 SCRA 36, 47 (1997).
66 People vs. Lee Hoi Ming, G.R. No. 145337. October 2, 2003
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