People vs Cueno : 128277 : November 16, 1998 : J. Vitug : First Division

FIRST DIVISION

[G.R. No. 128277. November 16, 1998]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FERDINAND GUENO y MATA, accused-appellant

D E C I S I O N

VITUG, J.:

Ferdinand Cueno y Mata pleaded "not guilty" to two separate indictments charging him with the violation of Section 4 and of Section 8 of Republic Act 6425, otherwise known as the Dangerous Drugs Act, as amended: in the first charge (Criminal Case No. 37-95), appellant was accused, along with Florida Senarosa Fajardo, of having transgressed Section 4 of the Act, and in the other (Criminal Case No. 38-95), he was indicted for violating Section 8 of the law. The accusatory portions of the informations read:

In Criminal Case No. 37-95 -

"That on or about January 30, 1995, in the City of Cavite, Republic of the Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without legal authority, conspiring, confederating together and mutually helping one another, did, then and there, vatfulty, unlawfully, feloniously and knowingly sell to a poseur buyer a small brick of dried Marijuana leaves with flowering tops with a total net weight of 30.4315 grams, a prohibited drug.

"CONTRARY TO LAW."[1]

In Criminal Case No. 38-95 -

'That on or about January 30, 1995, 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, wilfully, unlawfully, feloniously and knowingly have in his possession and control one (1) brick and twenty one (21) plastic tea bag of dried Marijuana leaves with flowering tops with a total net weight of 861.5842'grams, 'a prohibited drug.

“CONTRARY TO LAW"[2]

Accused Ferdinand Cueno and Florida Fajardo pleaded "not guilty" in Criminal Case No. 37-95; Cueno likewise entered a plea of "not guilty" in Criminal Case No. 38-95. Following the arraignment, a joint trial was conducted since the two offenses were spawned during the same occasion.

When the reception of the evidence had concluded, the trial court, in its decision of 10 January 1997, convicted both accused (Cueno and Fajardo) in Criminal Case No. 37-95 and found accused-appellant (Cueno) in Criminal Case No. 38-95 guilty as charged. The dispositive portions of the judgment in the two criminal cases read:

"WHEREFORE, this Court finding both accused GUILTY beyond reasonable doubt as charged in the two (2) criminal Informations, accordingly hereby sentences them as follows:

"In Crim. Case No. 37-95

"Accused FERDINAND CUENO and FLORIDA FAJARDO are hereby sentenced to an indeterminate prison term of four (4) months and twenty (20) days of arresto mayor maximum as minimum, to four (4) years and two (2) months of prision correccional medium as maximum, with the accessory penalties provided for by law, and to pay the costs.

"In Crim. Case No. 38-95

"Accused FERDINAND CUENO is hereby sentenced to a penalty of reclusion perpetua and is ordered to pay a fine of P500,000.00, with the accessory penalties provided for by law, and to pay the costs.

"SO ORDERED."[3]

The versions given by the prosecution and the defense, respectively, were narrated in good detail by the trial court, presided over by the Honorable Christopher 0. Lock, in its appealed decision, viz-.

'The prosecution evidence showed that on January 25, 1995, an asset accompanied P01 AVELINO CAMANTIGUE to lnocencio St., San Roque, Cavite City and pointed to the house of the accused FERDINAND CUENO. Upon instructions of their commanding officer, Police Superintendent MELCHOR RAMOS of the lst Mobile Force Company based in Camp Pantaleon Garcia, lmus, Cavite, PO1 CAMANTIGUE together with SPO1 AQUILINO SARMIENTO and P02 EDWIN MOJICA conducted surveillance operations on the alleged drug pushing activities of herein accused at around 9:30 in the morning of January 26, 1995. P01 CAMANTIGUE who posed as a newspaper vendor observed from a distance of 15 meters from the store of FERDIE CUENO that a person was handing money to said accused and FERDIE in turn gave something to the person who immediately inserted the same in his pocket. CAMANTIGUE allegedly overheard FERDIE saying: 'hindi ka lugi sa halagang P20.00 at iyan ay malakas.' At that time SARMIENTO and MOJICA passed by CAMANTIGUE who removed his cap as a signal that the sale was already consummated. After this, the group returned to their station, and reported the result of their surveillance to their commanding officer who instructed them to apply for a search warrant.

"On January 30, 1995 at about 9:30 in the morning, SPO1 AQUILINO SARMIENTO together with P02 EDWIN MOJICA and P01 AVELINO CAMANTIGUE proceeded to the Hall of Justice at Imus, Cavite and applied for and were issued Search Warrant No. 023 by Judge DOLORES L. ESPAÑOL, of the Regional Trial Court Branch 90, Dasmariñas, Cavite. Said search warrant ordered the search of the premises of one PETER DOE alias FERDIE and the seizure of dried marijuana leaves allegedly in the possession of aforesaid person.

"After the search warrant was issued by Judge ESPAÑOL, CAMANTIGUE and his companions returned to their station and informed their Commanding Officer Police Superintendent MELCHOR RAMOS that a search warrant has already been issued, who hatched a plan that a buy-bust operation be conducted on the accused first before the implementation of the search warrant. It was agreed that P01 CAMANTIGUE will be accompanied by their informant who will introduce the former to FERDIE as a user who is interested in buying marijuana.

"At about 3:30 that same afternoon, a team of policemen led by P/Supt. RAMOS, and composed of SPO1 SARMIENTO, P02 MOJICA, P01 CAMANTIGUE, P03 FRANCISCO RAMOS together with their informant, a certain ADO, proceeded to Cavite City, more particularly, lnocencio St., San Roque, Cavite City, where accused resides. Upon arrival thereat, as planned, ADO introduced CAMANTIGUE to FERDIE as a user who wants to buy marijuana. FERDIE at that time was standing by the door of his store which is just an extension of the house where he was staying. After said introduction, FERDIE asked CAMANTIGUE how much worth of marijuana was he buying, to which CAMANTIGUE retorted that he wanted to buy marijuana worth P150.00. FERDIE got the P150.00 from CAMANTIGUE and then called his commonlaw wife, the herein accused FLORIDA FAJARDO alias FLORY, and instructed her to give CAMANTIGUE marijuana worth P150.00. FLORY went inside their house and when she returned, she handed CAMANTIGUE the marijuana (Exhibit 'D'). CAMANTIGUE then removed his cap as a signal to his companions that the sale has been consummated. SPO1 SARMIENTO, P02 MOJICA and his companions approached them and they identified themselves as policemen. They then arrested FERDIE, and recovered from his possession were the buy money in the amount of P150.00, consisting of a P100 bill with SN VQ927976 and a P50.00 bill with SN NRO87791. FLORY was asked to go out of the store, and the policemen announced to the couple that they had with them a search warrant for the search and seizure of marijuana in the premises of both accused. Before the raiders proceeded to search the house of the accused, they called for barangay officials in the area to witness the conduct of the search. Barangay Kagawads ERNESTO ROSAL and ALFREDO SALINAS, SK Chairman EDGAR ORDOÑEZ, Asst. Chief Barangay Tanod JOSE DESIDERIO arrived, and together with P/Supt. RAMOS, SPO1 SARMIENTO, P02 MOJICA and P01 CAMANTIGUE proceeded to search the residence of the accused. Barangay Chairman DOROTEO ICAYAN, JR. arrived when the search was in progress. Inside the bedroom of the accused, SPO1 SARMIENTO found a balikbayan box which contained dirty clothes, a brick of dried flowering tops of marijuana wrapped in a newspaper with a gross weight of 803 grams (Exhibit 'E') and twenty one (21) plastic tea bags containing dried flowering tops of marijuana with a gross weight of 48.5842 grams (Exhibits 'F-l' to 'F-21') together with rolling papers. After the search, the policemen prepared a Receipt of Property seized (Exhibit '1') which was signed by both accused FERDINAND CUENO and FLORIDA FAJARDO, ANGELINA MATA, mother of FERDIE, the raiding police officers, and the barangay officials who were present when the search was made and the ensuing discovery of marijuana inside the bedroom of the accused. Both accused together with the seized articles were then brought by the policemen to their headquarters in Camp Pantaleon Garcia, Imus, Cavite. The following day, January 31, 1995, the seized articles were brought to the NBI for laboratory examination, which examination gave positive results for marijuana. On the same day, the corresponding criminal complaints were filed against accused FERDINAND CUENO and FLORIDA FAJARDO.

"The story of the defense is different.

"The defense evidence showed that at around 4:30 in the afternoon of January 30. 1995, while accused FLORIDA FAJARDO was tending their store located at Inocencio St., San Roque, Cavite City and taking care of her 1 1/2 year old daughter, JESSICA, about eight (8) armed policemen in civilian clothes forcibly entered their house. As she was so frightened by the sudden appearance of these persons, she called her live-in partner and co-accused FERDINAND CUENO, who at the time was at the back of their house, near the residence of their neighbor JERRY LIBONGCOGON watching children playing with spiders. When FERDIE, hearing the shouts of FLORY, rushed to the scene and introduced himself and asked why these persons were inside his house, he received a strong slap on his face. FLORY, looking pale and visibly frightened by the events she saw, held her child and just sat on their bed. FERDIE and FLORY were brought outside where FERDIE was handcuffed. After about 5 minutes, barangay officials came, namely, EDGIE ORDONEZ, JOJO ROSAL and ALFREDO SALINAS. He noticed the presence of Barangay Tanod JOSE DESIDERIO when Barangay Captain DOROTEO ICAYAN came. FERDIE was not able to talk to the barangay officials because they talked with the policemen inside the house. The policemen showed the barangay officials the search warrant which was not shown to the accused. Thereafter, the first floor of their house was searched and policemen found marijuana inside a box. The box and the marijuana inside does not belong to him and he does not know where it came from. FERDIE's sister, LORENA CUENO, who actually owns the store he and his wife FLORY are tending, and her live-in partner EFREN CONCEPCION are the ones occupying the first floor of their house. FERDIE and his wife occupies one of the three (3) rooms in the second floor of the house owned by FERDIE's mother. FERDIE's mother and stepfather, together with his younger sister occupies the two (2) other rooms. At the time the raid was conducted by the police on January 30, 1995, LORENA was working in Japan as an entertainer, and it was only EFREN who was occupying the first floor of the house, although both accused still has access to the first floor because one has to pass the ground floor before he can enter the store. EFREN who is jobless and a known drug user has already been salvaged (summarily executed by law enforcement agents) sometime last year."[4]

Only Ferdinand Cueno appealed to this Court from the judgment of the court a quo. While, normally, only that which meted him the sentence of reclusion perpetua could be appealed directly to the Supreme Court, his other conviction, however, in the other case over which the trial court imposed a lower penalty, could likewise here be considered consistently with the ruling in People vs. Saley,[5] where this Court had observed:

"x x x This Court has appellate jurisdiction over ordinary appeals in criminal cases directly from the Regional Trial Courts when the penalty imposed is reclusion perpetua or higher. The Rules of Court, allows, however, the appeal of criminal cases involving penalties lower than reclusion perpetua or life imprisonment under the circumstances stated in Section 3, Rule 122, of the Revised Rules of Criminal Procedure. Thus -

"'(c) The appeal to the Supreme Court in cases where the penalty imposed is life imprisonment, or where a lesser penalty is imposed but involving offenses committed on the same occasion or arising out of the same occurrence that gave rise to the more serious offense for which the penalty of death or life imprisonment is imposed shall be by filing a notice of appeal in accordance with paragraph (a) of this Section.'"

In his brief filed in compliance with the resolution of 27 August 1997 of the Court, appellant, through counsel, argues that -

"l. The trial court (has) erred in giving credence to the testimonies of the prosecution witnesses; (and)

"2. The trial court (has) erred in finding accused-appellant Ferdinand Cueno guilty beyond reasonable doubt in Criminal Case No. 37-95 for selling marijuana leaves and Criminal Case No. 38-95 for possessing marijuana leaves."[6]

Regrettably, the appeal must fail.

Accused-appellant assails the credibility of the police officers who have given testimony in the two criminal cases. Unless compelling reasons are shown otherwise, this Court, not being a trier of facts itself, rely in good part on the assessment and evaluation by the trial court of the evidence, particularly the attestations of witnesses, presented to it. The Court will not generally interfere with the findings of the trial court in passing upon the credibility of the witnesses; it is the latter court, not the appellate tribunal, which has the opportunity to see and hear first hand the bringing up to it during trial of testimonial evidence. Here, once again, the Court sees no reason to doubt and disturb the findings thereon of the trial court. The inconsistencies pointed out by accused-appellant, at best to his cause, pertain only to collateral matters and really not that relevant to the case against him.

The totality of the evidence would indicate that the sale of prohibited drugs did take place. The two basic elements for this charge to prosper, i.e., (a) the identity of the buyer and the seller, the object and the consideration, and (b) the delivery of the thing sold and the payment therefor,[7] as the Solicitor General so pointed out, had been successfully established by the prosecution witnesses, particularly the police officers, in their testimony during trial.

P01 Camantigue, the poseur buyer, declared that it was appellant who ordered the production of marijuana worth P150.00 during the buy-bust operation:

"Q: What happened after the two of you arrived there?

''A: Our informant introduced me to Ferdie, Sir, as a user and I will buy marijuana.

xxx xxx xxx

''Q: After you were introduced, what happened?

''A: He asked me about how much will I get, Sir.

"Q: What was your reply, if any?

''A:- Worth about P150.00, Sir.

"Q: After that, what happened?

''A: He called somebody named Flory, Sir.

xxx xxx xxx

''Q: What did the woman do when she was called by Ferdie?

"A: She was introduced to me by Ferdie as his wife, Sir, and he instructed her to give me worth P 150. 00.

xxx xxx xxx

"Q: If this Ferdie that you are referring to is present inside this Courtroom, will you be able to recognize him?

''A:- Yes, Sir.

''Q: Please look around and tell us if you can see Ferdie inside this Courtroom.

''A:- He is here, Sir.

''Q:- Please point to him, Mr. Witness.

''A: He is there, Sir. (Witness pointing to a man who identified himself as Ferdinand Cueno)."[8]

The existence of consideration and the fact of delivery of the drug bought from the accused was confirmed by the witness:

''PROS. LU:

Were you able to buy marijuana?

''A: Yes, Sir.

"Q: From whom did you buy marijuana?

''A: This P150.00 was taken from me by Ferdie and then Ferdie told Flory who was then inside their house and she was told to give me marijuana worth P150.00, Sir.

"Q: Are we to understand from you that this P150.00 was handed by you to Ferdie even before he called for Flory9

"A: Yes, Sir.[9]

When the article bought from the accused was later subjected to laboratory examination by the Forensic Chemistry Division of the National Bureau of Investigation, the drug was tested positive for, and had a total net weight of 30.4315 grams of, marijuana. The Certification,[10] dated 31 January 1995, containing the test results, was admitted by both the prosecution and the defense in their stipulation of facts.[11]

Appellant would want the Court to hold as being tainted with irregularity, and therefore void, the sale of the prohibited drug since the marked money used in the purchase of the illegal drug has not been "blottered." The argument is absurd. Indeed, in People vs. Manahan,[12] the Court has ruled that the failure to mark the money or to present it in evidence is not material since the matter will not essentially disprove the sale. Even the presentation in evidence of the buy-bust money. is not indispensable for the conviction of the accused as long as the sale can be adequately proved in some other way by the prosecution.[13] The sale of the prohibited drug has been succinctly described by the trial court, thus-

"Contrary to the contentions of the accused that there was no buy-bust operation, the police officers had shown through their testimonies that the elements of the offense with which he was charged were present, i.e., that the accused had sold and delivered a prohibited drug to another and that accused knew that what he had- sold and delivered was a dangerous drug (People vs. Manzano, 227 SCRA 780). The established fact is that there was marijuana taken from the accused FERDINAND CUENO pursuant to a buy-bust operation and the same was tested positively as such. In fact, accused did not refute the fact that the substance recovered from him when he was arrested was marijuana, a prohibited drug."[14]

Appellant submitted the defense of alibi, on the claim that he was not even at home when the sale supposedly had taken place. It would be hard to buy this defense when measured up against the positive identification made of him and the presumption of regularity in the performance of official functions by the police officers who conducted the operation.

Appellant would question his conviction in Criminal Case No. 38-95 allegedly because of the illegality of the search made in his house. The arrest of appellant has been made in the course of a buy-bust operation, thus, in flagrante delicto. A buy-bust operation - a form of entrapment which has repeatedly been accepted to be a valid means of arresting violators of the Dangerous Drugs Law[15] - is far variant from an ordinary arrest. In lawful arrests, it becomes both the duty and the right of the apprehending officers to conduct a warrantless search not only on the person of the suspect but also in the permissible area within his reach, i.e., that point which is within the effective control of the person arrested, or that which may furnish him with the means of committing violence or of escaping.[16] Prosecution witness P01 Camantigue, in this regard, has narrated:

"Q: Where was Ferdie at the time you arrived in front of his house?

''A: He was located at the side of a store by the door, Sir.

''Q: How far is that store from the house of this Ferdie?

''A: It is an extension of the house, Sir.

''Q: You are telling us that this store is part of the house of Ferdie?

xxx xxx xxx

"A: Yes, sir."[17]

Under this set-up, it becomes advisable, if not necessary, for the peace officers to forthwith undertake a search of the house as being within the "permissible area.''

Appellant insinuates a "frame-up," in his brief, he states:

''Accused-appellant Ferdinand Gueno denied having sold marijuana to the arresting officers. He claimed that there was no buy-bust operation. At 4:30 P.M. January 30, 1995, he was at his neighbor's house with Jerry Liboncogon watching the two (2) children playing with spiders. He heard the shouts of his wife so he ran towards home and when he arrived there, the police officers were already inside the house. While they were conducting the search, somebody shouted and said "eto pala, ang dami." (No reply or rebuttal was made on this). The marijuana allegedly found by the searching officers does not belong to him or to his wife.

“x x x xxx xxx

''Even prosecution witness Edgar Ordonez bolstered the claim of Cueno that the marijuana found by the searching officers does not belong to him. Ordonez declared that the kitchen was searched first and he cannot remember if anything was found there. Then the dresses were searched and nothing was found. The searchers proceeded to the store but nothing was found. He heard the driver of the jeep (of the policemen) uttered "eto pala, ang dami." Then he saw marijuana (TSN, April 2, 1996, pp. 3-16). This shows that the marijuana allegedly found during the search was planted. This declaration of Ordonez totally destroyed the case of the prosecution. As prosecution witness, Ordonez stated facts consistent with the guilt of accused Cueno but he also stated facts inconsistent with the guilt of the latter. In the case of Duran vs. Court of Appeals (71 SCRA 68), it was held that where inculpatory facts are susceptible to two interpretations, one consistent and the other inconsistent with the guilt of the accused, then the evidence fails to fulfill the test of moral certainty and is insufficient to support conviction."[18]

Verily, in order that this most-often invoked defense of ''frame up'' could possibly prosper, the evidence therefor should be clear and convincing. Far from it, the contrary would here appear to be the case, The details leading to the discovery of the prohibited drug were narrated by the prosecution witnesses with no significant inconsistencies. P01 Camantigue testified:

''Q. What part of the house of Ferdie did you search first?

''A: The first part that we searched was the bedroom of Ferdie, Sir.

x x x x x x xxx

''Q: Who actually conducted the search inside the bedroom of Ferdie?

"A- SPO1 Sarmiento, Sir.

x x x x x x x x x

"Q: Who were present?

"A: One of them was Brgy. Capt. lcayan, Sir.

'Q: Who else?

''A: Our Officer Col. Ramos and some brgy. councilmen, Sir.

"Q: Who were present inside the room?

''A: I was also one of those who were inside the room, Sir.

x x x x x x xxx

"Q: Now, what was the result of the search conducted by Aquilino Sarmiento inside the room?

xxx xxx xxx

''A: SPO1 Sarmiento was able to find marijuana wrapped with one huge piece of wrapping paper, Sir.

"PROS. LU:

'Q: In what particular portion of the bedroom did Sarmiento find that marijuana?

"A: In the cabinet of their clothes, Sir."[19]

SPO1 Sarmiento, the searching officer, was unequivocal in his own testimony, he stated:

"Q: What part of the house did you search first?

''A: The first thing that I searched was the bed of the spouses Cueno, Sir.

''Q: Did you find anything?

''A: I did not find any from there, Sir.

xxx xxx xxx

"Q: What place did you search next?

"A: The next thing that was searched was their dress cabinet, Sir.

''Q:Did you find anything there?

''A: Yes, sir.

"Q: What did you find?

''A: I found the marijuana from the dress cabinet, Sir."[20]

No ill-motive on the part of the police officers in effecting the buy-bust operation, and the consequent search that followed, had at all been shown. The arrest of appellant was made in the course of an entrapment, following a surveillance operation, normally performed by police officers in the apprehension of violators of the Dangerous Drugs Act. The Court finds itself in agreement with the Solicitor General in this observation.-

"Nowhere in the record is there evidence that P01 Camantique was moved by ill-will. No proof was adduced by the appellant to show that the police officer was motivated by evil intent. Of the several thousand residents of Cavite City, there was absolutely no reason for the police officer to single out the appellant and hurl false accusations against him. Truly, no person in his right senses would be so cruel as to implicate an innocent person to a crime so serious as to cost even his life. Rather, what prompted P01 Camantigue to come into the open and unmask the appellant on his illegal drug activities was his desire to do something for the eradication of the drug menace."[21]

The Court, here again, holds 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, the Court will not allow their testimony to be overcome by the self-serving and uncorroborated claim of "frame-up."[22]

The confiscated drug, with a total weight of 851.5842 grams, when tested, similarly proved to be positive for marijuana.

Following the ruling in People vs. Simon,[23] and the amendatory provisions of Republic Act 7659, the Court finds the sentence handed down by the trial court against appellant for Violation of Section 4, as well as of Section 8, Republic Act No. 6425, as amended, well within the legally prescribed penalties.

WHEREFORE, the DECISION appealed from is AFFIRMED. Costs against appellant,

SO ORDERED.

Davide, Jr. (Chairman), Bellosillo, Panganiban and Quisumbing JJ., concur.