G.R. No. 173790

SECOND DIVISION

PEOPLE OF THE PHILIPPINES,

Appellee,

- versus -

RUSSEL NAVARRO y MARMOJADA alias “JHONG,”

Appellant.

G.R. No. 173790

Present:

QUISUMBING, J., Chairperson,

CARPIO,

CARPIO MORALES,

TINGA, and

VELASCO, JR., JJ.

Promulgated:

October 11, 2007

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

D E C I S I O N

CARPIO MORALES, J.:

Branch 64 of the Regional Trial Court of Makati[1] convicted, as charged, appellant Russel Navarro y Marmojada alias “Jhong” for violation of Sections 5 and 11, Article II of Republic Act (R.A.) No. 9165 (The Comprehensive Dangerous Drugs Act of 2002). The Court of Appeals, to which this Court referred the cases following People v. Mateo, affirmed[2] his conviction, hence, his present appeal.

The accusatory portion of the Information charging appellant with violation of Section 5, Article II of R.A. No. 9165, which was docketed as Crim. Case No. 03-1941, reads:

That on or about the 7^th day of June, 2003, in the City of Makati, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously without being authorized by law, sell, distribute and transport zero point zero two gram (0.02) of Methylamphetamine Hydrochloride (shabu) a dangerous drug, in violation of the above-cited law.

CONTRARY TO LAW.[3] (Underscoring supplied)

The accusatory portion of the Information charging him with violation of Section 11 of Article II of the same Act, which was docketed as Crim. Case No. 03-1942, reads:

That on or about the 7^th day of June, 2003, in the City of Makati, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, not being lawfully authorized to possess or otherwise use any dangerous drug and without the corresponding license or prescription, did then and there willfully, unlawfully and feloniously have in his possession, direct custody and control Methylamphetamine Hydrochloride (shabu) weighing zero point zero one gram (0.01) which is a dangerous drug, in violation of the above-cited law.

CONTRARY TO LAW.[4] (Underscoring supplied)

From the evidence for the prosecution, the following version is culled:

The Makati Anti-Drug Abuse Council (MADAC) Cluster 5 received a tip from an informant that one alias “Jhong” was involved in the sale of illegal drugs in East Rembo, Makati. MADAC Cluster 5 thus coordinated with the Drug Enforcement Unit of the Makati City Police Station and organized a buy-bust team composed of MADAC member Juan Siborboro (Siborboro) as poseur-buyer, PO1 Randy Santos, and another MADAC member Edgardo Lumawag (Lumawag).

As planned, the team, together with the informant, repaired to and arrived at around 3:30 p.m. of June 7, 2003 at the reported locus criminis along 17^th Avenue, East Rembo, Makati City. Upon sighting “Jhong,” who was later identified to be appellant Russel Navarro y Marmojada, the informant introduced Siborboro to him and told him that Siborboro wanted to buy some shabu. Appellant asked how much. Siborboro answered “piso lang,” at the same time handing a marked hundred peso bill[5] to appellant who in turn handed over to him a plastic sachet containing suspected shabu. Siborboro then lighted a cigarette, which was the pre-arranged signal that the transaction was completed,[6] and PO1 Santos and Lumawag immediately closed in, introduced themselves as a police officer and a MADAC member, respectively, and arrested appellant.

Lumawag recovered from appellant the marked one hundred peso bill-buy-bust money and another plastic sachet containing shabu. The team members thereupon informed appellant the reason for his arrest and his constitutional rights.

The plastic sachet containing suspected shabu sold to Siborboro and that confiscated from appellant by Lumawag were marked by Siborboro with “RNM” and “RNM-1,” respectively. On examination by the Philippine National Police Crime Laboratory,[7] the substances inside the two plastic sachets were found positive for methylamphetamine hydrochloride or shabu.[8]

Upon the other hand, appellant gave his version as follows:

At around 11 a.m. of June 7, 2003, as he was at the site of the alleged buy-bust operation to look for and summon his children for lunch, he saw a white Toyota Revo, on which the word MADAC was printed, parked in front of his house. The passengers of the vehicle alighted and dragged him into it. He was there maltreated by PO1 Santos, asked if he is Jhong Navarro to which he answered in the affirmative, and told that he was being accused of selling shabu. Despite his denial of the charge, he was brought to the Criminal Investigation Division where he was shown a plastic sachet containing shabu and told that it was his. He was thereafter brought to Fort Bonifacio for a drug test.[9] Parenthetically, he, on cross-examination, claimed that it was Siborboro who maltreated him, contrary to his testimony on direct that it was PO1 Santos.

In its Decision of June 1, 2005, the trial court convicted appellant of both charges, disposing as follows:

WHEREFORE, in view of the foregoing, judgment is rendered against accused RUSSEL NAVARRO alias “Jhong” as follows:

1. Finding him GUILTY beyond reasonable doubt of the crime of violation of Section 5 of R.A. No. 9165 (Criminal Case No 03-1941) and sentencing him to suffer the penalty of life imprisonment and to pay a fine of P500,000.00,

2. Finding him GUILTY beyond reasonable doubt of the crime of violation of Section 11 of R.A. No. 9165 (Criminal Case No. 03-1942) and (considering that the quantity of shabu subject matter of the case is only 0.01), sentencing him to suffer the indeterminate penalty of imprisonment of twelve (12) years and one day as minimum, to fourteen (14) years and one day, as maximum pursuant to the Indeterminate Sentence Law. (R.A. [No.] 4103, as amended).

In both cases, the period during which he was under detention shall be considered in his favor.

The Branch Clerk of Court (OIC) is directed to transmit to the Philippine Drug Enforcement Agency (PDEA) the two (2) plastic sachets of Methylamphetamine Hydrochloride with a combined weight of 0.03 gram[s] subject of these cases, for said agency’s appropriate disposition.

SO ORDERED.[10] (Underscoring supplied)

As stated early on, the Court of Appeals affirmed the decision of the trial court.[11]

Before this Court, appellant manifested that he was no longer filing a Supplemental Brief and would just adopt the Brief he filed before the Court of Appeals. In said Brief,[12] appellant faulted the trial court to have erred

. . . IN FINDING [HIM] GUILTY BEYOND REASONABLE DOUBT OF THE CRIMES CHARGED.

. . . IN NOT CONSIDERING THE ILLEGALITY OF [HIS] ARREST.[13]

While, with a few exceptions, this Court has, as a rule, deferred to trial courts’ assessment of the credibility of witnesses and their determination of facts, considering the gravity of the offenses and the severity of the penalties imposed, a thorough, hard review of the records of the cases was conducted. No ground or reason to reverse the decision on review has been gathered, however, albeit a modification of the penalty in the case for illegal possession of shabu is in order.

In similar dangerous drugs cases involving buy-bust operations, the Court has, on various occasions, pronounced as follows:

It is a settled rule that in cases involving violations of the Dangerous Drugs Act, credence is given to prosecution witnesses who are police officers for they are presumed to have performed their duties in a regular manner, unless there is evidence to the contrary.

x x x x

Unless there is clear and convincing evidence that the members of the buy-bust team were inspired by any improper motive or were not properly performing their duty, their testimonies with respect to the operation deserve full faith and credit.[14]

Bare denials cannot prevail over the prosecution witnesses' positive identification of appellants as the persons who were in possession of the shabu, who delivered it to the poseur-buyer, and who received payment for it. The records clearly show that they were entrapped through a buy-bust operation. Their denial cannot prevail over the positive testimony of the police officers who had no reason or ill motive to testify falsely against them. As earlier adverted to, the officers' testimonies were consistent, unequivocal and replete with details of the transaction with appellants and, therefore, merit our full faith and credence.[15]

From the transcript of stenographic notes of the proceedings in the cases, this Court finds the testimonies of the police officer and the two MADAC operatives credible, straightforward, and corroborate each other. Appellant’s denial, absent any evidence to buttress it, is, like alibi, a self-serving negative evidence which cannot be accorded greater evidentiary weight than the declaration of credible witnesses who testified on affirmative matters.[16]

It bears noting that appellant has not even imputed any motive which could have impelled the buy-bust team to falsely charge him.

Appellant nevertheless contended that 1) his warrantless arrest was illegal; 2) the warrantless search of his person was illegal; 3) assuming that there was indeed a buy-bust operation, no proof was presented that the substance inside the sachets was indeed shabu; and 4) the equipoise rule applies to his case, hence, the presumption of innocence should incline in his favor.

Section 5, Rule 113 of the Rules of Court provides:

Arrest without warrant; when lawful. ─ A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7. (Italics in the original; emphasis supplied)

Since appellant was arrested in flagrante delicto while selling a sachet of shabu to the poseur-buyer, his arrest without warrant was legal.

On the warrantless search on appellant’s body during which he was found to be in possession of a sachet of shabu, the same was legal too, it having been done during a lawful arrest. Section 13, Rule 126 of the Rules of Court so provides:

Search incident to lawful arrest.—A person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant.

On appellant’s claim that there was no proof that the substance in the sachets was indeed shabu, the same fails. The Physical Science Report found that the substance contained inside both sachets which came from appellant was positive for methylamphetamine hydrochloride or shabu. That the forensic chemist who examined the contents of the sachets was not presented as a witness does not render the Physical Science Report hearsay as the parties stipulated, during the Pre-trial of the cases, that it was issued by a qualified Forensic Chemist of the PNP Crime Laboratory. Thus the Pre-trial Order[17] dated August 14, 2003 chronicled the stipulations of the parties as follows:

x x x x

3. That the Drug Enforcement Unit through SP/Insp. Leandro Mendoza Abel made a Request for Laboratory Examination;

4. That the PNP Crime Laboratory through Engr. Richard Allan B. Mangalip conducted an examination on the specimen submitted.

5. That Physical Science Report was issued by the PNP Crime Laboratory Office detailing the findings of the Forensic Chemist; and

6. The qualification of the Forensic Chemist

x x x x[18] (Underscoring supplied)

Additionally, the defense admitted the documentary evidence of the prosecution including the Physical Science Report ─ Exhibit “D.”

COURT

The prosecution has filed its formal offer of exhibits. There is no comment yet from the defense. So, the comment will be verbal.

ATTY. REGALA

Yes. Your Honor. As regards to Exhibit A and submarkings your Honor, up to Exhibit D, we admit the existence of the document. . .

x x x x

Exhibits A to G,[19] being the subject of the stipulations between the parties during the pretrial are admitted.[20] (Emphasis and underscoring supplied)

As for appellant’s invocation of the equipoise rule ─ that if the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty, and does not suffice to produce a conviction[21] ─ the same must be denied.

The inculpatory facts are not capable of any explanation other than appellant’s guilt of sale and possession of methylamphetamine hydrochloride or shabu.

A word on the penalty. The penalty imposed by the trial court in Criminal Case No. 03-1942 (for possession of shabu) which was affirmed by the appellate court is “the indeterminate penalty of imprisonment of twelve (12) years and one (1) day as minimum to fourteen (14) years and one (1) day as maximum.” Section 11, Article II of Republic Act No. 9165, however, penalizes the offense with both prison term and fine, thus:

ARTICLE II

Unlawful Acts and Penalties

x x x x

Section 11. Possession of Dangerous Drugs . . .

x x x x

. . . [I]f the quantity involved is less than [10 grams], the penalties shall be graduated as follows:

x x x x

(3) Imprisonment of twelve (12) years and one (1) day to twenty years and a fine ranging from Three hundred thousand pesos (P300,000.00) to Four hundred thousand pesos (P400,000.00) if the quantities of dangerous drugs are less than five (5) grams of . . . “shabu” . . . (Emphasis and underscoring supplied)

A fine of Three Hundred Thousand Pesos (P300,000) must thus be added to the prison term imposed in Criminal Case No. 03-1942.

A final word. The trial court failed to specify in the dispositive portion of its decision, which was affirmed by the appellate court, the Article number in R.A. No. 9165 to which Sections 5 and 11, under which appellant was charged and convicted, belong. The Article number – II – must thus be inserted.

WHEREFORE, the decision of the Court of Appeals is AFFIRMED with MODIFICATION in accordance with the two immediately foregoing paragraphs.

As modified, the dispositive portion of the judgment reads:

WHEREFORE, judgment is rendered against accused RUSSEL NAVARRO alias “Jhong”:

1. Finding him GUILTY beyond reasonable doubt of the crime of violation of Section 5, Article II of R.A. No. 9165 (Criminal Case No. 03-1941) and sentencing him to suffer the penalty of life imprisonment and to pay a fine of Five Hundred Thousand Pesos (P500,000),

2. Finding him GUILTY beyond reasonable doubt of the crime of violation of Section 11, Article II of R.A. No. 9165 (Criminal Case No. 03-1942) and (considering that the quantity of the shabu subject matter of the case is only 0.01) sentencing him to suffer the indeterminate penalty of imprisonment of twelve (12) years and one (1) day as minimum, to fourteen (14) years and one (1) day as maximum, pursuant to the Indeterminate Sentence Law. (Republic Act No. 4103, as amended) and to pay a fine of Three Hundred Thousand (P300,000) Pesos.

In both cases, the period during which appellant was under detention shall be credited in his favor.

The Branch Clerk of Court (OIC) of Branch 64, Regional Trial Court of Makati is directed to transmit to the Philippine Drug Enforcement Agency the two (2) plastic sachets of methylamphetamine hydrochloride with a combined weight of 0.03 grams, subject matter of these cases, for said agency’s appropriate disposition.

SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING

Associate Justice

Chairperson

ANTONIO T. CARPIO

Associate Justice

DANTE O. TINGA

Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

LEONARDO A. QUISUMBING

Associate Justice

Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I certify that the conclusions in the above decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

REYNATO S. PUNO

Chief Justice

[2] CA rollo, pp. 79-89. Penned by Justice Sesinando E. Villon and concurred in by Justice Edgardo P. Cruz and Justice Rosalinda Asuncion-Vicente.

[5] Marking is “C5” on top of the serial number, id. at 67.

[6] TSN, September 16, 2003, pp. 9-10.

[7] Specifically, the Southern Police District Crime Laboratory Office, Fort Andres Bonifacio, Taguig, Metro Manila; records, p. 66.

[8] Physical Science Report No. D-650-035; id at 66.

[9] TSN, February 8, 2005, pp. 1-8.

[14] People v. Saludes, 451 Phil. 719, 725-726 (2003).

[15] People v. Razul, 441 Phil. 62, 93-94 (2002).

[16] People v. Bidoc, G.R. No. 169430, October 31, 2006, 506 SCRA 481, 497; citing People v. Aaron, G.R. Nos. 136300-02, September 24, 2002, 389 SCRA 526, 535; People v. Magtibay, G.R. No. 142985, August 6, 2002, 386 SCRA 332, 348.

[19] The Physical Science Report was marked during the Pre-trial, as noted by the trial court in its Order of August 14, 2003.

[21] Abarquez v. People, G.R. No. 150762, January 20, 2006, 479 SCRA 225, 239 citing Vergara v. People, G.R. No. 160328, February 4, 2005, 450 SCRA 495.