SECOND
DIVISION
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PEOPLE OF THE Plaintiff-Appellee, - versus - RICKY
UNISA y ISLAN, Accused-Appellant. |
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G.R. No. 185721 Present: BRION, J.,
Acting Chairperson, PEREZ, SERENO,
JJ. Promulgated: September 28, 2011 |
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PEREZ, J.:
On appeal is the Decision[1]
dated 28 February 2008 of the Court of Appeals in CA-G.R. CR-H.C. No. 01559,
affirming the Decision[2]
dated 2 September 2005 of the Regional Trial Court (RTC) of Muntinlupa City,
Branch 205, in Criminal Case Nos. 03-504 to 03-505, finding herein appellant
Ricky Unisa y Islan guilty beyond
reasonable doubt of the offenses of (1) illegal sale of 0.02 gram of shabu, a dangerous drug, in violation of
Section 5,[3]
Article II of Republic Act No. 9165,[4]
for which he was sentenced to suffer the penalty of life imprisonment and to
pay a fine of P500,000.00; and (2) illegal possession of 0.43 gram of shabu, a dangerous drug, in violation of
Section 11,[5] Article
II of Republic Act No. 9165, for which he was sentenced to suffer an
indeterminate penalty of twelve (12) years and one (1) day to fifteen (15)
years and to pay a fine of P300,000.00.
Appellant Ricky Unisa y Islan was charged in two separate
Informations[6] both
dated 26 June 2003 with violation of Sections 5 and 11, Article II of Republic
Act No. 9165, which were respectively docketed as Criminal Case No. 03-504 and
Criminal Case No. 03-505. The
Informations state as follows:
Criminal Case No. 03-504
That on or about the 24th day of June 2003, in the City of Muntinlupa, Philippines and within the jurisdiction of this Honorable Court, [appellant], without authority of law, did then and there willfully and unlawfully sell, deliver and give away to another Methylamphetamine Hydrochloride, a dangerous drug weighing 0.02 gram contained in one (1) small heat-sealed transparent plastic sachet, in violation of the above-cited law.[7] [Emphasis supplied].
Criminal
Case No. 03-505
That on or about the 24th day of June 2003, in the City of Muntinlupa, Philippines and within the jurisdiction of this Honorable Court, [appellant], not being authorized by law, did then and there willfully and unlawfully have in his possession, custody and control Methylamphetamine Hydrochloride, a dangerous drug weighing 0.43 grams (sic) contained in twenty (20) small heat-sealed transparent plastics sachets, in violation of the above-cited law.[8] [Emphasis supplied].
When
arraigned, appellant, assisted by counsel de
oficio, pleaded NOT GUILTY[9] to
both charges.
At the Pre-Trial Conference, the
parties agreed to dispense with the testimony of Police Inspector Hermosila
Fermindoza (P/Insp. Fermindoza) after stipulating on her expertise as forensic
chemist whose testimony would consist of proving receipt of the Request for
Laboratory Examination[10] of
the pieces of evidence seized from appellant, which pieces of evidence were
placed inside a one-half brown mailing envelope and were appended thereto, to
wit: (1) one small heat-sealed transparent plastic sachet containing white
crystalline substance with markings RU; and (2) 20 more small heat-sealed
transparent plastic sachets likewise containing white crystalline substance
with markings RU-1 to RU-20, as well as a pair of folding scissors with
markings RU-22, which were inside a black coin purse with white stripes. Similarly stipulated was that P/Insp.
Fermindoza has conducted a chemical analysis of the substance and the analysis
was reduced into writing[11]
as evidenced by a Physical Science Report No. D-743-03s.[12]
A joint trial on the merits ensued
thereafter.
The
prosecution presented the testimony of Police Officers 1 Mark Sherwin Forastero
(PO1 Forastero) and Percival Medina (PO1 Medina), both of whom are police
operatives of the Drug Abuse Prevention and Control Office-Drug Enforcement
Unit (DAPCO-DEU),
The
facts, as culled from the records, are as follows:
On
the basis of a series of reports received by DAPCO-DEU,
Corollary
thereto, on 24 June 2003, at around 8:00 p.m., P/Insp. Arsenio Silungan
(P/Insp. Silungan), Chief of DAPCO-DEU,
The
buy-bust team, thereafter, prepared the buy-bust money consisting of two One
Hundred Peso (P100.00) bills in the total amount of P200.00
bearing Serial Nos. JX 392195 and DY 711514, respectively. PO1 Aguirre signed the buy-bust money at the
bottom thereof. They were also photocopied
and recorded in the police blotter as Entry No. 03-180.[16] A Pre-Operation Report/Coordination Sheet was
similarly prepared and transmitted to the Philippine Drug Enforcement Agency
(PDEA) via facsimile.[17]
After
all the necessary documentary requirements had been completed, the buy-bust
team proceeded to the target area, i.e.,
Quezon Street, Purok 7, Poblacion,
Muntinlupa City, on board two vehicles, to wit: Toyota Revo and Anfra Van with
Plate Nos. SGS 492 and SFG 484, respectively.
PO1 Forastero, PO1 Medina, SPO1 Goce, SPO3 Macalla, SPO3 Madriaga and
the two civilian agents boarded the Toyota Revo while the rest of the buy-bust
team boarded the Anfra Van.[18]
Upon reaching the area of operation
at around 9:30 p.m., more or less, the buy-bust team strategically parked the Toyota
Revo and the Anfra Van at Sitio
Tipaurel and Poblacion, 50 meters away from each other. While inside the Toyota Revo, PO1 Forastero
and PO1 Medina already saw their confidential informant some 40 meters away waiting
for them. PO1 Forastero and PO1 Medina,
nevertheless, stayed inside the Toyota Revo as they were still waiting for a
text message coming from another asset who would confirm alias Rickys presence at the target area. After an hour, the aforesaid asset texted SPO3
Macalla to inform the buy-bust team that alias
Ricky was already at the target area.[19]
Accordingly, PO1 Forastero and PO1
Medina alighted from the vehicle. Upon
seeing them, the confidential informant promptly approached and accompanied
them to alias Rickys place. At this juncture, the other members of the
buy-bust team also alighted from their vehicles and followed PO1 Forastero, PO1
Medina and the confidential informant at a distance to provide perimeter
security.[20]
After a 15-minute walk traversing a place
along the train railways, PO1 Forastero, PO1 Medina and the confidential
informant reached the exact place of alias
Ricky in Quezon Street, Purok 7, Poblacion,
Muntinlupa City. The rest of the
buy-bust team then acted as perimeter guards.
At a distance of about seven meters, the confidential informant saw a
person wearing a white sando and
black pants sitting by a lighted house with an open door whom he recognized and
identified as alias Ricky. The confidential informant then pinpointed alias Ricky to PO1 Forastero and PO1
Medina. Thereafter, the confidential informant immediately approached alias Ricky and introduced him to PO1
Forastero and PO1 Medina as his relatives.
After gaining the trust and confidence of alias Ricky, PO1 Forastero told the former that he would like to
score P200.00 worth of shabu
and he simultaneously handed to him the two P100.00-peso bills marked
money amounting to P200.00. Alias Ricky received the marked money
and, in turn, got and opened a black coin purse with white stripes from his
left hand and took out a small heat-sealed transparent plastic sachet
containing the suspected shabu and handed
it to PO1 Forastero, which the latter accepted.[21]
At once, PO1 Forastero held alias Rickys right hand and introduced
himself as police officer. PO1 Medina then
assisted PO1 Forastero in arresting alias
Ricky by holding the latters left hand.
The other members of the buy-bust team, who were just within the
vicinity, arrived. PO1 Medina recovered from
the left hand of alias Ricky a black
coin purse with white stripes containing 20 more small heat-sealed transparent
plastic sachets with white crystalline substance suspected to be shabu and a small pair of folding
scissors. The two marked P100.00-peso
bills with Serial Nos. JX 392195 and DY 711514, respectively, amounting to P200.00,
however, were recovered from alias
Rickys pocket by PO1 Forastero. The
latter compared the recovered marked money with the photocopies thereof, which
he brought with him in the buy-bust operation, and they matched.[22]
Subsequently, alias Ricky was informed of his constitutional rights. He was, thereafter, brought by the buy-bust
team to their office where they came to know his full name to be Ricky Unisa y Islan, the herein appellant. The items seized from the latter, which remained
in the possession of PO1 Forastero and PO1 Medina on their way to their office,
were immediately marked upon their arrival thereat. PO1 Forastero placed the markings RU
representing appellants initials on the subject of the sale, i.e., one small heat-sealed transparent
plastic sachet containing suspected shabu,
while PO1 Medina marked with RU-1 to RU-20 (inclusive) the seized 20 more
small heat-sealed transparent plastic sachets with white crystalline
substance. The black coin purse with
white stripes where the 20 more small heat-sealed transparent plastic sachets
with white crystalline substance, together with a small pair of folding
scissors, were found was likewise marked by PO1 Medina with RU-21. The small pair of folding scissors was similarly
marked by PO1 Medina with RU-22. An
inventory thereof was also made.[23]
Afterwards, a Request for Laboratory
Examination[24] of the seized
items and a Request for Drug Test[25]
of appellant both dated 24 June 2003 were made.
PO1 Forastero, PO1 Medina and PO1 Gunayon then forwarded the seized
items to the Philippine National Police (PNP), Crime Laboratory, PNP Southern
Police District,
Appellants drug test yielded
positive result[27] as
evidenced by Physical Science Report No. DT-889-03.[28] As regards the items seized from appellant,
they were all found positive[29] for
the presence of methylamphetamine
hydrochloride or shabu, a
dangerous drug, as evidenced by Physical Science Report No. D-743-03s.[30]
The
defense presented the testimony of appellant and his common-law wife, Janice
Deles (Janice). As expected, appellant denied
all the accusations against him and, instead, offered a different version of
what transpired on the day of his arrest.[31]
Appellant, a tricycle driver, claimed
that on 24 June 2003, at around 8:00 p.m., while he was inside their house at
PNR Site, Purok 7, Poblacion, Muntinlupa City, fixing a broken flashlight, PO1
Forastero and PO1 Medina suddenly barged in and arrested him for the alleged
illegal sale of shabu, a dangerous
drug. Appellant denied the same but the
police officers insisted that their office received several calls regarding his
illegal drug activities. Appellant was then
immediately handcuffed by Ibaez, one of the civilian agents of DAPCO-DEU, P4,200.00,
which the latter recovered from appellant while they were still inside the
house. Appellant vehemently denied that
such money was earned by him from selling shabu. Instead, he explained that the said money was
a loan from a certain Corazon Arciaga to be used by his common-law wife as
capital for selling fruits. Appellant
was, thereafter, made to board the Toyota Revo and was brought to the office of
DAPCO-DEU,
Appellant, nonetheless, admitted that
it was only at the time of his arrest that he met the arresting police
officers. He did not know them prior to
his arrest. There was also no bad blood
between him and the police. Also,
despite appellants allegation that Ibaez took his money and gave it to SPO3
Macalla, he did not file robbery charges against them.[33]
To bolster appellants defense of
denial, his common-law wife, Janice, corroborated his testimony.
Janice maintained that appellant was
not in possession and was not engaged in the illegal sale of shabu.
Janice declared that at the time and place in question, while she was
dressing up their child after giving him medicine, Ibaez, together with PO1
Forastero and PO1 Medina, hastily barged into their house. Without any arrest warrant or search
warrant, Ibaez instantly handcuffed and frisked appellant. Ibaez similarly took appellants money,
which the latter borrowed from a certain Corazon Arciaga, and handed it to SPO3
Macalla. At this juncture, Janice forcefully
resisted appellants arrest and likewise tried to retrieve the money but to no
avail. The police officers successfully
brought appellant out of their house and boarded him inside a vehicle. Janice continuously pleaded not to take
appellant but her pleas remained unheeded.
Janice then followed appellant up to the office of DAPCO-DEU,
The trial court found that all the
elements of the offenses charged against appellant were satisfactorily proven
by the prosecution. In its Decision
dated 2 September 2005, the trial court held appellant guilty beyond reasonable
doubt of violation of Sections 5 and 11, Article II of Republic Act No.
9165. The trial court disposed of the
case as follows:
WHEREFORE, premises considered, [appellant] Ricky Unisa is hereby found guilty beyond reasonable doubt of the offenses of illegal sale of 0.02 gram of methylamphetamine hydrochloride and possession of 0.43 gram thereof and sentences him as follows:
1. For Crim. Case No. 03-504 (Violation of
Sec. 5, Republic Act [No.] 9165, sale of dangerous drugs) life imprisonment
and to pay a fine of PESOS: FIVE HUNDRED THOUSAND (P500,000.00);
2. For Crim. Case No. 03-505 (Violation of
Sec. 11, Republic Act [No.] 9165, possession of 0.43 gram of methylamphetamine
hydrochloride) imprisonment ranging from twelve years and one day to fifteen
years (applying the Indeterminate Sentence Law) and to pay a fine of PESOS:
THREE HUNDRED THOUSAND (P300,000.00).
Costs against [appellant].
Pursuant to Section 21(7), Republic Act [No.] 9165, Trial Prosecutor Brenn S. Taplac shall, after promulgation hereof, inform the Dangerous Drugs Board of the final termination of the case and request this court for the [turnover] of the dangerous drug subject matter thereof to the PDEA for proper disposition and destruction within twenty-four hours from its receipt.[35] [Emphasis supplied].
Disconcerted, appellant
appealed the Decision of the trial court to the Court of Appeals via Notice of Appeal.[36]
In
his brief, appellant assigned the following errors:
I.
THE COURT A QUO GRAVELY ERRED IN GIVING CREDENCE TO THE VERSION OF THE PROSECUTIONS WITNESSES WHOSE TESTIMONIES WERE FULL OF DISCREPANCIES AND INCONSISTENCIES.
II.
THE COURT A QUO GRAVELY ERRED IN CONVICTING THE
[APPELLANT] FOR VIOLATIONS OF SECTIONS 5 & 11 OF REPUBLIC ACT NO. 9165 DESPITE
THE FAILURE OF THE PROSECUTION TO OVERTHROW THE CONSTITUTIONAL PRESUMPTION OF
INNOCENCE IN HIS FAVOR.[37]
The Court of Appeals, in the
assailed Decision dated 28 February 2008, affirmed appellants conviction for
violation of Sections 5 and 11, Article II of Republic Act No. 9165. The Court of Appeals held that all the
essential elements of illegal sale and possession of shabu were duly proven by the prosecution. Appellants defense of denial collapses in
the face of positive identification by the prosecution witnesses who, as police
officers, enjoy in their favor the presumption of regularity in the performance
of their official duties. The Court of
Appeals similarly declared that the defense failed to prove ill-motive on the
part of the prosecution witnesses and the other members of the buy-bust team to
impute a serious offense that would certainly jeopardize the life and liberty
of appellant. The Court of Appeals also
stated that the inconsistencies and/or discrepancies pointed to by appellant
were too trivial and inconsequential to warrant the reversal of his conviction. Such inconsistencies and/or discrepancies did
not negate the fact that a buy-bust operation was conducted and as a result of
which appellant was caught in flagrante
delicto selling and possessing shabu. The Court of Appeals, thus, decreed:
WHEREFORE, the Decision appealed from, being in accordance with law and the evidence, is hereby AFFIRMED.[38]
Still unsatisfied,
appellant comes to this Court contending that the trial court gravely erred in
convicting him of the offenses charged despite the existence of several facts
creating serious doubts as to the veracity thereof. Appellant posits that it was quite unusual
and improbable for a police officer, like PO1 Medina, to correctly remember the
six-digit serial numbers of the marked money used in the buy-bust operation,
which was conducted about a year earlier than his testimony, but could not
remember if he placed any marking thereon.
It was also quite odd for PO1 Medina not to recall the date of his last
successful buy-bust operation despite his vivid recollection of the serial
numbers of the marked money used in the buy-bust operation against appellant.
Appellant further
contends that the discrepancy and contradiction in the testimonies of PO1
Forastero and PO1 Medina cast doubts on the credibility of their testimonies. While PO1 Forastero maintained that he and
PO1 Medina were both introduced to appellant as relatives of the confidential
informant, PO1 Medina claimed otherwise.
Appellant also avers that
the standard operating procedure that was supposed to be observed by the
buy-bust team was tainted with irregularities, which created doubts on the
authenticity of the buy-bust operation.
Though it was P/Insp. Silungan who conducted the briefing on the manner
of the buy-bust operation, it was PO1 Natuel who signed the Pre-Operation
Report/Coordination Sheet that was transmitted to PDEA for and on behalf of P/Insp.
Silungan. Moreover, the police officers
who prepared the marked money merely photocopied and entered the same in their
blotter, instead, of lacing it with ultra-violet powder despite the fact that a
prior surveillance and confirmation operations have been conducted before the
actual buy-bust operation.
Finally, appellant
asserts that the police officers likewise failed to observe the requirements
laid down in Section 21[39]
of Republic Act No. 9165, particularly the photographing of the seized drugs in
his presence or his representative or counsel, a representative from the media,
a representative from the Department of Justice (DOJ) and any elected public
official.
We sustain appellants
conviction for violation of Sections 5 and 11, Article II of Republic Act No.
9165.
We rely on the trial
courts assessment of the credibility of witnesses, absent any showing that
certain facts of weight and substance bearing on the elements of the crime have
been overlooked, misapprehended, or misapplied.[40]
For a successful
prosecution of the offense of illegal sale of dangerous drugs, like shabu, the following elements must first
be established: (1) the identity of the buyer and the seller, the object and
consideration of the sale; and (2) the delivery of the thing sold and the
payment therefor.[41] What
is material is proof that the transaction or sale actually took place, coupled
with the presentation in court of evidence of corpus delicti.[42]
Clearly, the commission of the offense of illegal sale of dangerous drugs, like shabu, merely requires
the consummation of the selling transaction, which happens the moment the buyer
receives the drug from the seller.
As long as the police officer went through the operation as a buyer, whose
offer was accepted by appellant, followed by the delivery of the dangerous
drugs to the former, the crime is already consummated.[43] In this case, the prosecution has amply
proven all the elements of the drugs sale beyond moral certainty.
The testimony of PO1
Forastero, who acted as the poseur-buyer
in the buy-bust operation against appellant explicitly described how the sale
transaction of shabu between him and
appellant occurred. This commenced when the
confidential informant approached appellant and introduced to the latter PO1
Forastero and PO1 Medina as his relatives.
The same was followed by PO1 Forasteros query to appellant if he could
score P200.00 worth of shabu,
as well as the simultaneous handing over of the said amount consisting of two P100.00-peso
bills buy-bust money to the latter. Appellant
received the buy-bust money, got and opened a black coin purse with white
stripes from his left hand, took out therefrom one small heat-sealed
transparent plastic sachet with white crystalline substance, which was later on
confirmed as methylamphetamine
hydrochloride or shabu per
Physical Science Report No. D-743-03s, and handed it to PO1 Forastero. The latter accepted the same. Such exchange of the buy-bust money and the
small heat-sealed transparent plastic sachet with white crystalline substance later
on confirmed as shabu between PO1
Forastero and appellant already consummated the sale transaction of illicit
drugs.
Being the poseur-buyer, PO1 Forastero positively
identified appellant, who was caught red-handed, to be the same person who sold
to him one small heat-sealed transparent plastic sachet of shabu for a consideration of P200.00. When the small heat-sealed transparent
plastic sachet of shabu was presented
in court, PO1 Forastero identified it to be the same object sold to him by
appellant because of the markings RU representing appellants initials, which
PO1 Forastero himself has written thereon.
PO1 Forastero also identified in court the recovered buy-bust money from
appellant consisting of two P100.00-peso bills amounting to P200.00
with the signature of PO1 Aguirre at the bottom thereof. PO1 Forastero was certain that the two P100-peso
bills recovered from appellant were the buy-bust money because their serial
numbers matched the photocopy thereof, which he had with him during the
buy-bust operation.
Without a doubt, the prosecution,
thus, established with the required quantum of proof, i.e., proof beyond reasonable doubt, appellants guilt for the
offense of illegal sale of shabu, a
dangerous drug, in blatant violation of Section 5, Article II of Republic Act
No. 9165.
As to the offense of
illegal possession of shabu, a
dangerous drug, it must be shown that: (1) the accused is in
possession of an item or object which is identified to be a prohibited drug;
(2) such possession is not authorized by law; and (3) the accused freely and
consciously possessed the said drug.[44]
These circumstances of
illegal possession of shabu are
obtaining in the present case.
Incident to appellants
lawful arrest resulting from the buy-bust operation, 20 more small heat-sealed
transparent plastic sachets of shabu with
an aggregate weight of 0.43 gram, which were the same kind of dangerous drug he
was caught selling red-handed, where recovered in his possession by PO1 Medina,
who assisted PO1 Forastero in arresting appellant. When the 20 more small heat-sealed
transparent plastic sachets of shabu were
presented in court, both PO1 Medina and PO1 Forastero identified them to be the
same objects recovered from appellant while he was being frisked during his
arrest for illegally selling shabu. PO1 Medina similarly affirmed that the
markings RU-1 to RU-20 written thereon was done by him.
The record is also bereft
of any evidence to show that appellant has the legal authority to possess the
20 more small heat-sealed transparent plastic sachets of shabu. The rule is settled
that possession of dangerous drugs constitutes prima facie evidence of knowledge or animus possidendi, which is sufficient to convict an accused in the
absence of a satisfactory explanation of such possession. The burden of evidence is, thus, shifted to
the accused to explain the absence of knowledge or animus possidendi.[45] Unfortunately, the appellant in the present
case miserably failed to discharge that burden.
Appellant was not able to satisfactorily explain his absence of knowledge
or animus possidendi of the shabu recovered in his possession.
In view thereof, this
Court is fully convinced that appellants guilt for the offense of illegal
possession of shabu in violation of
Section 11, Article II of Republic Act No. 9165, has also been aptly proven by
the prosecution beyond the shadow of reasonable doubt.
Appellant contends that
the following facts created serious doubts as to the veracity of the offenses
charged against him and on the credibility of the prosecution witnesses and
their testimonies, to wit: (1) PO1 Medina vividly remembered the six-digit
serial numbers of the marked money used in the buy-bust operation conducted
about a year earlier than his testimony but failed to recall if he placed any
marking thereon and likewise failed to remember the date of his last successful
buy-bust operation; and (2) discrepancy and contradiction existed in the
testimonies of PO1 Forastero and PO1 Medina on whether both of them were
introduced to appellant by their confidential informant.
Such contention is unavailing. PO1 Medinas failure to recall if he placed
any marking on the buy-bust money, as well as the date of his last successful
buy-bust operation, was neither fatal nor material for the prosecution of either
illegal sale or possession of shabu as
those facts had no bearing or had nothing to do with the elements of the offenses
charged. More so, PO1 Medina was not the
one who marked the buy-bust money but PO1 Aguirre, one of the members of the
buy-bust team. Also, PO1 Medina was not
the poseur-buyer who handled the
buy-bust money but PO1 Forastero, who was able to positively identify the same during
his open court testimony. With the
foregoing, PO1 Medinas failure to recall if he ever put any marking on the
buy-bust money should not be taken against him.
Even granting arguendo that the buy-bust money has not
been marked, jurisprudence is clear that failure to mark the boodle money is
not fatal to the cause of the prosecution.
Neither law nor jurisprudence requires the presentation of any of the
money used in a buy-bust operation much
less is it required that the boodle money be marked.[46] Similarly, the absence of marked money does
not create a hiatus in the evidence
for the prosecution provided that the prosecution has adequately proved the
sale.[47] Hence, the only elements necessary to
consummate the crime of illegal sale of shabu
is proof that the illicit transaction took place, coupled with the presentation
in court of the corpus delicti or the
illicit drug as evidence.[48] Both elements were satisfactorily proven in
this case.
Further, the discrepancy
and contradiction in the testimonies of PO1 Forastero and PO1 Medina on whether
both of them or only PO1 Forastero was introduced to appellant as relatives of
the confidential informant, the same was too trivial, inconsequential and
irrelevant to the elements of the offenses charged. It is too minor to warrant the reversal of
the judgment of conviction against appellant.
It neither affects the truth of the testimonies of prosecution witnesses
nor discredits their positive identification of appellant. In contrast, such
trivial inconsistencies strengthen rather than diminish the prosecutions case
as they erase suspicion of a rehearsed testimony and negate any misgiving that
the same was perjured.[49] As aptly observed by the Court of Appeals,
thus:
Such inconsistencies and/or discrepancies do not negate the fact that a buy-bust operation was conducted and that they took part in it by acting as a poseur-buyer and a back-up, respectively, and by effecting the arrest of the [appellant] soon after the consummation of the sale of shabu to poseur-buyer PO1 Forastero. x x x.[50]
We find untenable appellants
assertions that the standard operating procedure supposed to be observed by the
buy-bust team was tainted with irregularities as the Pre-Operation Report/Coordination
Sheet that was transmitted to PDEA was merely signed by PO1 Natuel, a member of
the buy-bust team, and not by P/Insp. Silungan, the one who conducted the
briefing; and that the buy-bust money was merely photocopied and entered in the
police blotter, instead, of being laced with ultra-violet powder.
To note, there are no
provisions either in Republic Act No. 9165 or its Implementing Rules and
Regulations requiring that (1) the Pre-Operation Report/Coordination Sheet that
should be transmitted to PDEA must only be signed by the person who conducted
the briefing; and (2) the buy-bust money to be used in the actual buy-bust
operation must be dusted with ultra-violet powder. The Pre-Operation Report/Coordination Sheet
and the use of dusted money are not indispensable to prove the illegal sale of shabu.
These two are not part of the elements of the aforesaid offense. To repeat, in a prosecution for illegal sale
of dangerous drugs, like shabu, what
is important is the fact that the poseur-buyer
received shabu from the
accused-appellant and the same was presented as evidence in court,[51]
which the prosecution in this case was able to do so. As has been previously discussed, all the
elements of illegal sale of shabu
were adequately proven and established by the prosecution.
Further, emphasis must also
be given to the fact that PO1 Natuel was present during the briefing on the
conduct of their buy-bust operation against appellant. He has personal knowledge therefore about the
manner and other significant details of the said buy-bust operation. Thus, he can properly attest to the veracity
and truthfulness of the contents of the Pre-Operation Report/Coordination Sheet
that was transmitted to PDEA. And, even on
the assumption that the Pre-Operation Report/Coordination Sheet that was
transmitted to PDEA is disregarded such that it is as though no coordination
with PDEA was made, still the genuineness and legitimacy of the buy-bust
operation against appellant would stand.
In People v. Roa,[52]
this Court made the following pronouncements, thus:
In the first place, coordination with the PDEA is not an indispensable requirement before police authorities may carry out a buy-bust operation. While it is true that Section 86 [citation omitted] of Republic Act No. 9165 requires the National Bureau of Investigation, PNP and the Bureau of Customs to maintain "close coordination with the PDEA on all drug related matters," the provision does not, by so saying, make PDEAs participation a condition sine qua non for every buy-bust operation. After all, a buy-bust is just a form of an in flagrante arrest sanctioned by Section 5, Rule 113 [citation omitted] of the Rules of Court, which police authorities may rightfully resort to in apprehending violators of Republic Act No. 9165 in support of the PDEA [citation omitted]. A buy-bust operation is not invalidated by mere non-coordination with the PDEA.[53] [Emphasis supplied].
Equally, the only purpose
for treating with ultra-violet powder the buy-bust money to be used in the
actual buy-bust operation is for identification, that is, to determine if there
was receipt of the buy-bust money by the accused in exchange for the illegal
drugs he was selling. In the present
case, although the buy-bust money were not laced with ultra-violet powder,
still, the prosecution was able to positively identify that the two P100.00-peso
bills recovered from appellant right after his arrest were the buy-bust money
as the same were photocopied and entered in the police blotter before the
actual buy-bust operation.
With the foregoing, the
failure to sign the Pre-Operation Report/Coordination Sheet by the person who
conducted the briefing and the failure to lace the buy-bust money with
ultra-violet powder do not affect or in any way diminish the authenticity of
the buy-bust operation against appellant.
For it remains undeniable that a legitimate buy-bust operation was
conducted against appellant leading to the latters arrest for being caught in flagrante delicto selling and possessing
shabu. More importantly, the prosecution was able to
prove all the essential elements of the offenses charged against appellant.
The final argument of
appellant that the police officers likewise failed to observe the requirements of
Section 21, Article II of Republic Act No. 9165, primarily because the seized
drugs were not photographed in his presence or his representative or counsel, a
representative from the media, a representative from the DOJ and any elected
public official, stands on hollow ground.
Section
21, paragraph 1, Article II of Republic Act No. 9165 provides:
Section 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; [Emphasis supplied].
The same is implemented by Section 21(a), Article II of
the Implementing Rules and Regulations of Republic Act No. 9165, viz.:
(a) 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: Provided, further, that non-compliance with these requirements
under justifiable grounds, as long as the integrity and the evidentiary value
of the seized items are properly preserved by the apprehending officer/team,
shall not render void and invalid such seizures of and custody over said
items. [Emphasis supplied].
In this case, the prosecutions
failure to conduct the required photograph of the seized drugs in compliance
with the provision of Section 21, Article II of Republic Act No. 9165, will not
work to the advantage of appellant.
Non-compliance thereto is not fatal and will not render appellants arrest
illegal or the items seized/confiscated from him inadmissible.[54] As can be observed, the implementing rules
offer some flexibility when a proviso
added that non-compliance with these requirements under justifiable grounds, as long as the integrity and the
evidentiary value of the seized items are properly preserved by the
apprehending officer/team, shall not render void and invalid such seizures of
and custody over said items.[55] Thus, 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.[56]
More so, even if the
seized drugs were not marked at the place of arrest the same does not render
the confiscated items inadmissible in evidence.
In Imson v. People, this Court
made the following pronouncements:
In People v. Resurreccion [citation omitted] the Court held that the failure of the policemen to immediately mark the confiscated items does not automatically impair the integrity of chain of custody. The Court held:
Jurisprudence tells us that the failure to immediately mark seized drugs will not automatically impair the integrity of chain of custody.
x x x x
x x x People v. Sanchez, however, explains that [Republic Act] 9165 does not specify a time frame for immediate marking, or where said marking should be done:
What Section 21 of [Republic Act] No. 9165 and its implementing rule do not expressly specify is the matter of marking of the seized items in warrantless seizures to ensure that the evidence seized upon apprehension is the same evidence subjected to inventory and photography when these activities are undertaken at the police station rather than at the place of arrest. Consistency with the chain of custody rule requires that the marking of the seized items to truly ensure that they are the same items that enter the chain and are eventually the ones offered in evidence should be done (1) in the presence of the apprehended violator (2) immediately upon confiscation.
To be able to create a first link in the chain of custody, then, what is required is that the marking be made in the presence of the accused and upon immediate confiscation. Immediate Confiscation has no exact definition. Thus, in People v. Gum-Oyen, testimony that included the marking of the seized items at the police station and in the presence of the accused was sufficient in showing compliance with the rules on chain of custody. Marking upon immediate confiscation contemplates even marking at the nearest police station or office of the apprehending team.[57] [Emphasis supplied].
The
function of the chain of custody requirement, therefore, is to ensure that the
integrity and evidentiary value of the seized items are preserved, so much so
that unnecessary doubts as to the identity of the evidence are removed. To be admissible, the prosecution must show
by records or testimony, the continuous whereabouts of the exhibit at least
between the time it came into possession of the police officers and until it
was tested in the laboratory to determine its composition up to the time it was
offered in evidence.[58]
In the present case, the chain of
custody of the seized drugs does not appear to have been broken. After seizure of one small heat-sealed
transparent plastic sachet of suspected shabu,
which was the subject of the sale, and 20 more small heat-sealed transparent
plastic sachets also of suspected shabu,
which were recovered from appellant on the occasion of his arrest, they
remained in the possession of PO1 Forastero and PO1 Medina, respectively, on
their way to their office where PO1 Forastero marked the one small heat-sealed
transparent plastic sachet of suspected shabu
subject of the sale with appellants initials, i.e., RU, while PO1 Medina marked the 20 more small heat-sealed
transparent plastic sachets also of suspected shabu with RU-1 to RU-20, immediately upon their arrival thereat. Thereafter, the afore-named police officers,
together with PO1 Gunayon, forwarded the seized drugs to the PNP Crime Laboratory, PNP
Southern Police District,
In People v. Gaspar[59]
citing People v. De Guzman,[60]
this Court held 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 suggesting ill-motive on the part of the police
officers. In this case, appellant
failed to overcome the aforesaid presumption.
More telling is appellants own admission that he only met the
prosecution witnesses for the first time when he was arrested and that there
was no bad blood between them. This goes
to show that the prosecution witnesses were not impelled with improper motive
to falsely testify against appellant.
Against
the positive testimonies of the
prosecution witnesses, appellants plain denial of the offenses charged, unsubstantiated
by any credible and convincing evidence, must necessarily fail.[61] Other
than the testimony of appellants common-law wife, whose testimony was rendered
suspect because of her relationship with appellant, no other witness not
related to appellant was ever presented to corroborate his claim.[62] Further, both prosecution witnesses
positively identified appellant in open court to be the same person they caught
red-handed selling and possessing shabu. Appellants bare denial, therefore, cannot
prevail over such positive identification made by the prosecution witnesses.[63] In the same way, appellants denial cannot
overcome the presumption that the police officers in
this case have performed their duties in a regular and proper manner.[64] Besides, this Court held in a catena of cases that the defense of denial
or frame-up, like alibi, has been
viewed with disfavor for it can just as easily be concocted and is a common and
standard defense ploy in most prosecutions for violation of the Dangerous Drugs
Act.[65]
As to penalty. Section 5, Article
II of Republic Act No. 9165 clearly provides that the penalty for illegal sale
of dangerous drugs, like shabu, regardless
of its quantity and purity, shall be life imprisonment to death and a fine
ranging from P5,000,000.00 to P10,000,000.00. In light, however, of the effectivity of Republic
Act No. 9346,[66] the
imposition of the supreme penalty of death has been proscribed.[67] Thus, the penalty of life imprisonment and a
fine of P5,000,000.00 imposed upon appellant by the RTC and affirmed by
the Court of Appeals for the offense of illegal sale of shabu is in order.
Section 11, Article II of
Republic Act No. 9165, on the other hand, provides for the penalty for illegal
possession of dangerous drugs, like shabu. For illegal possession of less than five
grams of shabu, a dangerous drug, the
penalty is imprisonment of 12 years and 1 day to 20 years and a fine ranging
from P300,000.00 to P400,000.00.
In this case, appellants possession of shabu with an aggregate weight of 0.43 gram, that is, less than 5
grams, without any legal authority has been proven beyond reasonable doubt by
the prosecution. Applying the
Indeterminate Sentence Law, the penalty of 12 years and 1 day to 15 years and a
fine of P300,000.00 imposed upon appellant by the RTC and affirmed by
the appellate court for the offense of illegal possession of shabu is also proper.
WHEREFORE,
premises considered, the Decision of the Court of Appeals in CA-G.R. CR-H.C.
No. 01559 dated 28 February 2008 finding herein appellant guilty beyond
reasonable doubt of violation of Sections 5 and 11, Article II of Republic Act
No. 9165 is hereby AFFIRMED.
SO ORDERED.
|
|
JOSE PORTUGAL PEREZ
Associate Justice |
WE CONCUR:
ARTURO D. BRION
Associate Justice
Acting Chairperson
MARIA
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 Courts Division.
ARTURO D. BRION
Associate Justice
Acting Chairperson, Second Division
CERTIFICATION
Pursuant to Section 13, Article VIII
of the Constitution and the Division Chairpersons 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 Courts Division.
RENATO C.
CORONA
Chief Justice
* Per Special Order No. 1084 dated 13 September 2011.
** Per Special Order No. 1107 dated 27 September 2011.
[1] Penned
by Associate Justice Edgardo F. Sundiam with Presiding Justice Conrado M.
Vasquez, Jr. and Associate Justice Monina Arevalo-Zearosa, concurring. Rollo, pp. 2-17.
[2] Penned
by Judge Myrna V. Lim Verano. CA rollo,
pp. 48-57.
[3] 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 or such transactions.
[4] Otherwise
known as Comprehensive Dangerous Drugs Act of 2002.
[5] SEC. 11.
Possession of Dangerous Drugs.
The penalty of life imprisonment to death and a fine ranging from Five
hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00)
shall be imposed upon any person, who, unless authorized by law, shall possess
any dangerous drug in the following quantities, regardless of the degree of
purity thereof:
x x x x
Otherwise, if the quantity involved
is less than the foregoing quantities, the penalties shall be graduated as
follows:
(1) x x x
(2) x x x
(3) Imprisonment of twelve (12) years and one (1)
day to twenty (20) 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 opium, morphine, heroin,
cocaine or cocaine hydrochloride, marijuana resin or marijuana resin oil,
methamphetamine hydrochloride or shabu,
or other dangerous drugs such as, but not limited to, MDMA or ecstasy, PMA,
TMA, LSD, GHB, and those similarly designed or newly introduced drugs and their
derivatives, without having any therapeutic value or if the quantity possessed
is far beyond therapeutic requirements; or less than three hundred (300) grams
of marijuana.
[6] Records,
pp. 1 and 3.
[7]
[8]
[9] As
evidenced by Certificates of Arraignment both dated 17 September 2003 and RTC
Orders both dated 17 September 2003. Records, pp. 24-27.
[10]
[11] Per
Pre-Trial Order dated 1 December 2003. Records,
pp. 61-63; TSN, 16 May 2005, p. 11.
[12] Records,
p. 10.
[13] Testimony
of PO1 Forastero, TSN, 14 June 2004, p. 3; Testimony of PO1
[14]
[15] Id.
at 5-7 and 14-16; Id. at 4-6; Court of Appeals Decision, rollo, p. 5; RTC Decision, CA rollo,
p. 49.
[16] Testimony
of PO1 Forastero, TSN, 14 June 2004, p. 7; Testimony of PO1 Medina, TSN, 11
August 2004, pp. 5-6; Records, pp. 114, 117.
[17]
[18]
[19]
[20]
[21]
[22]
[23]
[24] Records,
pp. 24-27.
[25]
[26] Testimony
of PO1 Forastero, TSN, 14 June 2004, pp. 34-35 and 41; Testimony of PO1
[27]
[28] Records,
p. 120.
[29] Testimony
of PO1 Forastero, TSN, 14 June 2004, p. 36; Testimony of PO1
[30] Records,
p. 10.
[31] Testimony
of appellant, TSN, 6 December 2004, pp. 3 and 18.
[32]
[33]
[34] Testimony
of Janice Deles, TSN, 16 February 2005, pp. 3-18 and 22.
[35] CA
rollo, pp. 56-57.
[36] Rollo, pp. 18-19.
[37] Brief
for the Accused-Appellant. CA rollo,
p. 36.
[38] Rollo, p. 17.
[39] Section 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;
[40] People v. Lee Hoi Ming, 459 Phil. 187,
194 (2003).
[41] People v. Manlangit, G.R. No. 189806, 12
January 2011,
[42] People v. Gaspar, G.R. No. 192816, 6
July 2011.
[43] People v. Dela Rosa, G.R. No. 185166, 26
January 2011.
[44] People v. Gaspar, supra note 42.
[45] People v. Pendatun, 478 Phil. 201, 212
(2004).
[46] People v. Gonzales, 430 Phil. 504, 515
(2002).
[47] People v. Bongalon, 425 Phil. 96, 117
(2002).
[48] People v. Gonzales, supra note 46 at
515.
[49] People v. Garcia, 424 Phil. 158, 184-185
(2002).
[50] Court
of Appeals Decision. Rollo, p. 13.
[51] People v. Requiz, 376 Phil. 750, 760
(1999).
[52] G.R.
No. 186134, 6 May 2010, 620 SCRA 359.
[53]
[54] Imson v. People, G.R. No. 193003, 13
July 2011 citing People v. Concepcion,
G.R. No. 178876, 27 June 2008, 556 SCRA 421, 436-437 and People v. Campos, G.R. No. 186526, 25 August 2010, 629 SCRA 462,
468.
[55] People v. Manlangit, supra note 42.
[56] Imson v. People citing People v.
[57]
[58] People v. Dela Rosa, G.R. No. 185166, 26 January 2011 citing People v. Rosialda, G.R. No. 188330, 25 August 2010, 629 SCRA 507, 521.
[59] Supra
note 42.
[60] G.R.
No. 177569, 28 November 2007, 539 SCRA 306.
[61] People v. Sultan, G.R. No. 187737, 5
July 2010, 623 SCRA 542, 558.
[62] People v. Gopio, 400 Phil. 217, 263-237
(2000).
[63] People
v. Bongalon, supra note 47 at 120.
[64] People v. Gaspar, supra note 42.
[65] People v. Astudillo, 440 Phil. 203, 224
(2002); People v. Mustapa, 404 Phil.
888, 898 (2001); People v. Johnson, 401
Phil. 734, 750 (2000).
[66] Otherwise
known as An Act Prohibiting the Imposition of Death Penalty in the
[67] People v. Villahermosa, G.R. 186465, 1
June 2011 citing People v. Sembrano,
G.R. No. 185848, 16 August 2010, 628 SCRA 344.