THIRD DIVISION
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PEOPLE
OF THE
Plaintiff-Appellee, - versus - NORBERTO
Accused-Appellant. |
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G.R. No. 179940 Present: YNARES-SANTIAGO, Chairperson. AUSTRIA-MARTINEZ, CHICO-NAZARIO, NACHURA and REYES, JJ. Promulgated: |
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CHICO-NAZARIO, J.:
Assailed before Us is the Decision[1] of
the Court of Appeals in CA-G.R. CR-H.C. No. 02070 dated 28 May 2007 which
affirmed with modification the Decision[2] of
the Regional Trial Court (RTC) of Malolos, Bulacan, Branch 78, in Criminal Case
No. 3437-M-02, finding accused-appellant Norberto del Monte, a.k.a. Obet, guilty of violation of
Section 5,[3]
Article II of Republic Act No. 9165, otherwise known as “Comprehensive
Dangerous Drugs Act of 2002.”
On
That on or about the 10th day of December 2002, in the municipality of Baliuag, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without authority of law and legal justification, did then and there wilfully, unlawfully and feloniously sell, trade, deliver, give away, dispatch in transit and transport dangerous drug consisting of one (1) heat-sealed transparent plastic sachet of Methylamphetamine Hydrochloride weighing 0.290 gram.[4]
The case was raffled to Branch 78 of
the RTC of Malolos, Bulacan and docketed as Criminal Case No. 3437-M-02.
When arraigned on
The prosecution presented as its lone
witness PO1 Gaudencio M. Tolentino, Jr., the poseur-buyer in the buy-bust
operation conducted against appellant, and a member of the Philippine National
Police (PNP) assigned with the Philippine Drug Enforcement Agency (PDEA)
Regional Office 3/Special Enforcement Unit (SEU) stationed at the Field Office,
Barangay Tarcan, Baliuag, Bulacan.
The version of the prosecution is as
follows:
On
When the team arrived at appellant’s
place, they saw the appellant standing alone in front of the gate. The informant and PO1 Tolentino approached
appellant. The informant introduced PO1
Tolentino to appellant as his friend, saying “Barkada ko, user.” PO1
Tolentino gave appellant P300.00 consisting of three marked P100
bills.[7] The bills were marked with “GT JR,” PO1
Tolentino’s initials. Upon receiving the
P300.00, appellant took out a plastic sachet from his pocket and handed
it over to PO1 Tolentino. As a
pre-arranged signal, PO1 Tolentino lit a cigarette signifying that the sale had
been consummated. PO1 Barreras arrived,
arrested appellant and recovered from the latter the marked money.
The white crystalline substance[8] in
the plastic sachet which was sold to PO1 Tolentino was forwarded to PNP
Regional Crime Laboratory Office 3, Malolos, Bulacan, for laboratory
examination to determine the presence of the any dangerous drug. The request for laboratory examination was
signed by SPO2 Maung.[9] Per Chemistry Report No. D-728-2002,[10] the
substance bought from appellant was positive for methamphetamine hydrochloride,
a dangerous drug.
The testimony of Nellson Cruz Sta.
Maria, Forensic Chemical Officer who examined the substance bought from
appellant, was dispensed after both prosecution and defense stipulated that the
witness will merely testify on the fact that the drugs subject matter of this
case was forwarded to their office for laboratory examination and that
laboratory examination was indeed conducted and the result was positive for methamphetamine
hydrochloride.[11]
For the defense, the appellant took
the witness stand, together with his common-law wife, Amelia Mendoza; and
nephew, Alejandro Lim.
From their collective testimonies,
the defense version goes like this:
On
The policemen then took appellant and
his common-law wife to a house located in the middle of a field where the former
demanded P15,000.00 for their liberty.
The next day, appellant was brought to the police station.
Amelia Mendoza identified PO1
Tolentino and PO1 Barreras as the police officers who manhandled them and who
demanded P15,000.00 so that she and appellant could go home. The following day at P15,000.00. She
was released but appellant was detained.
She does not know why the police officers filed this case against
appellant. What she knows is that they
were asking money from them.
Alejandro Lim merely corroborated the
testimonies of appellant and Amelia Mendoza.
On P5,000,000.00. The dispostive portion of the decision reads:
WHEREFORE, the foregoing considered,
this Court hereby finds accused Norberto del Monte y Gapay @ Obet GUILTY beyond
reasonable doubt of the offense of Violation of Section 5, Art. II of R.A. 9165
and sentences him to suffer the penalty of LIFE IMPRISONMENT and a fine of P5,000,000.00.
With cost.
The drugs subject matter of this case is hereby ordered forfeited in favor of the government. The Branch of this Court is directed to turn over the same to the Dangerous Drugs Board within ten (10) days from receipt hereof for proper disposal thereof.[12]
The trial court found the lone
testimony of PO1 Gaudencio M. Tolentino, Jr. to be credible and straightforward. It established the fact that appellant was
caught selling shabu during an entrapment operation conducted on P300.00 worth of shabu as confirmed by
Chemistry Report No. D-728-2002. On the
other hand, the trial court was not convinced by appellant’s defense of
frame-up and denial. Appellant failed to
substantiate his claims that he was merely sleeping and was awakened by the
screams of his relatives who were being mauled by the police officers.
Appellant filed a Notice of Appeal on
On P500,000.00. It disposed of the case as follows:
WHEREFORE,
the appeal is DISMISSED and the decision dated March 8, 2004 of the RTC,
Branch 78, Malolos, Bulacan, in Criminal Case No. 3437-M-02, finding
accused-appellant Norberto del Monte guilty beyond reasonable doubt of Violation
of Section 5, Article II, Republic Act No. 9165, and sentencing him to suffer
the penalty of life imprisonment is AFFIRMED with the MODIFICATION
that the amount of fine imposed upon him is reduced from P5,000,000.00
to P500,000.00.[17]
A
Notice of Appeal having been timely filed by appellant, the Court of Appeals
forwarded the records of the case to us for further review.[18]
In our Resolution[19]
dated
Appellant makes a lone assignment of
error:
THE TRIAL COURT
GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF THE OFFENSE CHARGED
DESPITE THE INADMISSIBILITY OF THE EVIDENCE AGAINST HIM FOR FAILURE OF THE
ARRESTING OFFICERS TO COMPLY WITH SECTION 21 OF R.A. 9165.[20]
Appellant
anchors his appeal on the arresting policemen’s failure to strictly comply with
Section 21 of Republic Act No. 9165. He
claims that pictures of him together with the alleged confiscated shabu
were not taken immediately upon his arrest as shown by the testimony of the
lone prosecution witness. He adds that PO1
Tolentino and PO1 Antonio Barreras, the police officers who had initial custody
of the drug allegedly seized and confiscated, did not conduct a physical
inventory of the same in his presence as shown by their joint affidavit of
arrest. Their failure to abide by said
section casts doubt on both his arrest and the admissibility of the evidence
adduced against him.
At
the outset, it must be stated that appellant raised the police officers’
alleged non-compliance with Section 21[21]
of Republic Act No. 9165 for the first time on appeal. This, he cannot do. It is too late in the day
for him to do so. In People v. Sta.
Maria[22] in which the very same issue was
raised, we ruled:
The
law excuses non-compliance under justifiable grounds. However, whatever justifiable grounds may
excuse the police officers involved in the buy-bust operation in this case from
complying with Section 21 will remain unknown, because appellant did not
question during trial the safekeeping of the items seized from him. Indeed, the police officers’ alleged violations of Sections 21 and 86 of
Republic Act No. 9165 were not raised
before the trial court but were instead raised for the first time on
appeal. In no instance did appellant
least intimate at the trial court that there were lapses in the safekeeping of
seized items that affected their integrity and evidentiary value. Objection to evidence cannot be raised for
the first time on appeal; when a party desires the court to reject the evidence
offered, he must so state in the form of objection. Without such objection he cannot raise the
question for the first time on appeal. (Emphases
supplied.)
In
People v. Pringas,[23]
we explained that non-compliance with Section 21 will not render an accused’s
arrest illegal or the items seized/confiscated from him inadmissible. What is of utmost importance is the
preservation of the integrity and the evidentiary value of the seized items as
the same would be utilized in the determination of the guilt or innocence of
the accused. In the case at bar,
appellant never questioned the custody and disposition of the drug that was taken
from him. In fact, he stipulated that
the drug subject matter of this case was forwarded to PNP Regional Crime
Laboratory Office 3, Malolos, Bulacan for laboratory examination which examination
gave positive result for methamphetamine hydrochloride, a dangerous drug. We thus find the integrity and the
evidentiary value of the drug seized from appellant not to have been
compromised.
We
would like to add that non-compliance with Section 21 of said law, particularly
the making of the inventory and the photographing of the drugs confiscated and/or
seized, will not render the drugs inadmissible in evidence. Under Section 3 of Rule 128 of the Rules of
Court, evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules. For evidence to be inadmissible, there should
be a law or rule which forbids its reception.
If there is no such law or rule, the evidence must be admitted subject
only to the evidentiary weight that will accorded it by the courts. One example is that provided in Section 31 of
Rule 132 of the Rules of Court wherein a party producing a document as genuine
which has been altered and appears to be altered after its execution, in a part
material to the question in dispute, must account for the alteration. His failure to do so shall make the document
inadmissible in evidence. This is
clearly provided for in the rules.
We
do not find any provision or statement in said law or in any rule that will
bring about the non-admissibility of the confiscated and/or seized drugs due to
non-compliance with Section 21 of Republic Act No. 9165. The issue therefore, if there is
non-compliance with said section, is not of admissibility, but of weight –
evidentiary merit or probative value – to be given the evidence. The weight to be given by the courts on said
evidence depends on the circumstances obtaining in each case.
The elements necessary for the
prosecution of illegal sale of drugs are (1) the identity of the buyer and the
seller, the object, and consideration; and (2) the delivery of the thing sold
and the payment therefor.[24] What is material to the prosecution for
illegal sale of dangerous drugs is the proof that the transaction or sale
actually took place, coupled with the presentation in court of evidence of corpus
delicti.[25]
All these elements have been shown in
the instant case. The prosecution clearly
showed that the sale of the drugs actually happened and that the shabu
subject of the sale was brought and identified in court. The poseur buyer positively identified
appellant as the seller of the shabu.
Per Chemistry Report No. D-728-2002 of Forensic Chemical Officer Nellson
Cruz Sta. Maria, the substance, weighing 0.290 gram, which was bought by PO1 Tolentino
from appellant in consideration of P300.00, was examined and found to be
methamphetamine hydrochloride (shabu).
In the case before us, we find the
testimony of the poseur-buyer, together with the dangerous drug taken from
appellant, more than sufficient to prove the crime charged. Considering that this Court has access only
to the cold and impersonal records of the proceedings, it generally relies upon
the assessment of the trial court, which had the distinct advantage of
observing the conduct and demeanor of the witnesses during trial. It is a fundamental rule that findings of the
trial courts which are factual in nature and which involve credibility are
accorded respect when no glaring errors, gross misapprehension of facts and
speculative, arbitrary and unsupported conclusions can be gathered from such
findings. The reason for this is that
the trial court is in a better position to decide the credibility of witnesses
having heard their testimonies and observed their deportment and manner of
testifying during the trial.[26]
The rule finds an even more stringent
application where said findings are sustained by the Court of Appeals.[27] Finding no compelling reason to depart from
the findings of both the trial court and the Court of Appeals, we affirm their
findings.
Appellant denies selling shabu
to the poseur-buyer insisting that he was framed, the evidence against him being
“planted,” and that the police officers were exacting P15,000.00 from
him.
In the case at bar, the evidence
clearly shows that appellant was the subject of a buy-bust operation. Having been caught in flagrante delicto, his identity as seller of the shabu can no longer be doubted. Against the positive testimonies of the
prosecution witnesses, appellant’s plain denial of the offenses charged,
unsubstantiated by any credible and convincing evidence, must simply fail.[28] Frame-up, like alibi, is generally viewed
with caution by this Court, because it is easy to contrive and difficult to
disprove. Moreover, it is a common and
standard line of defense in prosecutions of violations of the Dangerous Drugs
Act.[29] For this claim to
prosper, the defense must adduce clear and convincing evidence to overcome the
presumption that government officials have performed their duties in a regular
and proper manner.[30] This, appellant failed to do. The presumption remained unrebutted because
the defense failed to present clear and convincing evidence that the police
officers did not properly perform their duty or that they were inspired by an
improper motive.
The presentation of his common-law wife, Amelia Mendoza, and
his nephew, Alejandro Lim, to support his claims fails to sway. We find both witnesses not to be credible. Their testimonies are suspect and cannot be
given credence without clear and convincing evidence. Their claims, as well as that of appellant,
that they were maltreated and suffered injuries remain unsubstantiated. As found by the trial court:
The accused, on the other hand, in an effort to exculpate himself from liability raised the defense of frame-up. He alleged that at the time of the alleged buy bust he was merely sleeping at the house of his sister. That he was awakened by the yells and screams of his relatives as they were being mauled by the police officers. However, this Court is not convinced. Accused failed to substantiate these claims of maltreatment even in the face of his wife’s and nephew’s testimony. No evidence was presented to prove the same other than their self-serving claims.[31]
Moreover,
we agree with the observation of the Office of the Solicitor General that the
witnesses for the defense cannot even agree on what time the arresting
policemen allegedly arrived in their house.
It explained:
To elaborate,
appellant testified that it was
Having established beyond reasonable
doubt all the elements constituting the illegal sale of drugs, we are
constrained to uphold appellant’s conviction.
The sale of shabu is penalized under Section 5,
Article II of Republic Act No. 9165.
Said section reads:
SEC. 5. P500,000.00)
to Ten million pesos (P10,000,000.00)
shall be imposed upon any person, who, unless authorized by law, shall sell,
trade, administer, dispense, deliver, give away to another, distribute,
dispatch in transit or transport any dangerous drug, including any and all
species of opium poppy regardless of the quantity and purity involved, or shall
act as a broker in any of such transactions.
Under said law, the sale of any
dangerous drug, regardless of its quantity and purity, is punishable by life
imprisonment to death and a fine of P500,000.00 to P10,000,000.00. For selling 0.290 gram of shabu to PO1
Tolentino, and there being no modifying circumstance alleged in the
information, the trial court, as sustained by the Court of Appeals, correctly
imposed the penalty of life imprisonment in accordance with Article 63(2)[33]
of the Revised Penal Code.
As regards the fine to be imposed on
appellant, the trial court pegged the fine at P5,000,000.00 which the
Court of Appeals reduced to P500,000.00.
Both amounts are within the range provided for by law but the amount
imposed by the Court of Appeals, considering the quantity of the drugs
involved, is more appropriate.
WHEREFORE,
premises considered, the instant appeal is DENIED. The Decision of the Court of Appeals in
CA-G.R. CR-H.C. No. 02070 dated
SO ORDERED.
|
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MINITA V. CHICO-NAZARIO
Associate Justice |
WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
Associate Justice Associate
Justice
RUBEN T. REYES
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.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson,
Third Division
CERTIFICATION
Pursuant to Section 13, Article VIII
of the Constitution, and the Division Chairperson’s Attestation, it is hereby
certified 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.
REYNATO S. PUNO
Chief Justice
[1] Penned by Associate Justice Hakim S. Abdulwahid with Associate Justices Martin S. Villarama, Jr. and Arturo G. Tayag, concurring. Rollo, pp. 93-105.
[2] Records, pp. 112-116.
[3]
[4] Records, p. 2.
[5]
[6]
[7] Exhs. D, D-1 and D-2; records, p. 62.
[8] Exh. B; id. at 61.
[9] Exh. A; id. at 60.
[10] Exh. C; id. at 61.
[11] TSN,
[12] Records, p. 116.
[13]
[14]
[15] G.R. Nos. 147678-87,
[16] Rollo, p. 62.
[17]
[18]
[19]
[20]
[21] SEC. 21. Custody
and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs,
Plant Sources of Dangerous Drugs, Controlled Precursors and Essential
Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. – The
PDEA shall take charge and have custody of all dangerous drugs, plant sources
of dangerous drugs, controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment so confiscated, seized
and/or surrendered, for proper disposition in the following manner:
(1) The apprehending team having initial custody
and control of the drugs, shall, immediately after seizure and confiscation,
physically inventory and photograph the same in the presence of the accused or
the person/s from whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the Department
of Justice (DOJ), and any elected public official who shall be required to sign
the copies of the inventory and be given a copy thereof.
[22] G.R. No. 171019,
[23] G.R. No. 175928,
[24] People v. Adam, 459 Phil. 676, 684 (2003).
[25] People
v. Nicolas, G.R. No. 170234,
[26] People v. Julian-Fernandez, 423 Phil. 895, 910 (2001).
[27] People
v. Cabugatan, G.R. No. 172019,
[28] People
v. Sy, G.R. No. 171397,
[29] People
v. Eugenio, G.R. No. 146805,
[30] People v. Zheng Bai Hui, 393 Phil. 68, 138 (2000).
[31] Rollo,
p. 57.
[32]
[33] ART. 63. Rules for the application of indivisible penalties.
x x x x
In all cases in which the law prescribes a penalty composed of two indivisible penalties, the following rules shall be observed in the application thereof:
x x x x
2. When there are neither mitigating nor aggravating circumstances in the commission of the deed, the lesser penalty shall be applied.