468 Phil. 56

FIRST DIVISION

[ G.R. No. 150624, February 24, 2004 ]

PEOPLE OF THE PHILIPPINES, APPELLEE, VS. PABLO DULAY, APPELLANT.

D E C I S I O N

AZCUNA, J.:

This is a petition for review on certiorari of the decision of the Regional Trial Court of Rosales, Pangasinan, Branch 53, in Criminal Case No. 3879-R, finding appellant Pablo Dulay guilty beyond reasonable doubt of illegal sale of marijuana in  violation of  Section 4, Article II of Republic Act (RA) 6425, as amended, and sentencing him to suffer the penalty of  reclusion  perpetua  and to pay a fine of Five Hundred Thousand Pesos (P500,000).

The Criminal Complaint[1] against appellant reads:
xxx      xxx        xxx

That on or about 12:50 o’ clock in the afternoon of July 18, 1998, in front of his house/canteen along the National Road, Carmen West, Rosales, Pangasinan, Philippines and within jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously sell One (1) Brick of Marijuana  Dried Leaves wrapped with newspaper and plastic tape weighing approximately One (1) Kilogram  to Narcotics Group Agent who posed as a buyer and in for consideration of One Hundred Peso Bill (P100.00) bearing Serial No. PU893829 and containing Boodle Money inside without authority to do so.

CONTRARY TO LAW.
When arraigned on March 1, 1999, appellant pleaded not guilty.[2]  Thereafter, trial ensued.

The Prosecution’s Evidence

PO3 Maximo N. Javonillo, Jr., a narcotics agent stationed at Barangay Cili, Binalonan, Pangasinan, testified that at around 9:00 a.m. of July 18, 1998, a confidential informant reported at their office that a certain Pablo was engaged in selling marijuana, a prohibited drug. Javonillo’s companion, PO2 Edgar C. Torres, was familiar with the name of the suspect because he had been arrested in a previous operation. After determining the veracity of the information, PO3 Javonillo informed his commanding officer, Major Benson[3] Leleng about the report.  Major Leleng instructed PO3 Javonillo to conduct a buy-bust operation against the suspect.  An entrapment team was formed, and it was agreed that PO3 Javonillo would act as the poseur-buyer, while PO2 Teogenes N. Perez and PO2 Torres would provide him security.[4]

That same morning, the entrapment team, together with the informant, went to Carmen, Rosales, Pangasinan, and arrived there about midday. They immediately coordinated with the policemen at Carmen Sub-station. Thereafter, they proceeded to the area of operation along the highway in Carmen West, Rosales, Pangasinan. Appellant’s house, which was used at the same time as a canteen, was fronting the highway.

PO3 Javonillo and his companions arrived at the vicinity of the canteen at about 12:30 p.m., and they positioned themselves strategically. At that time, there were   about five to six jeepneys parked in front of the canteen and few customers were inside the canteen. Javonillo and the confidential informant approached appellant, who was standing in front of the canteen. The informant introduced Javonillo to appellant as someone interested and willing to buy marijuana.   Appellant asked Javonillo how much marijuana he wanted to buy and told him that he had one (1) brick of marijuana which cost P1,500.  Javonillo told appellant that he wanted to buy one (1) brick of marijuana. Appellant asked him to wait for a minute. Appellant then entered his house and returned with something wrapped in newspaper.  Appellant handed the stuff to Javonillo who examined it. After ascertaining that it was marijuana, Javonillo gave appellant boodle money covered with a genuine P100-bill. After appellant received the money, Javonillo immediately executed his pre-arranged signal to his companions by scratching his head with his left hand.  PO2 Torres and PO2 Perez immediately rushed to the place where appellant was.  They informed appellant of his constitutional rights, and then arrested him. They recovered the P100-bill and the boodle money from appellant.[5]

In court, PO3 Javonillo identified by its serial number, PU893829, the P100-bill[6] as the same money they used during the buy-bust operation.  Javonillo also identified the brick of marijuana on which he had written his name and signature as the same brick that he confiscated from appellant. [7]

Police Superintendent Theresa Ann Bugayong Cid, the forensic chemist and regional chief of the PNP Crime Laboratory, Regional Office at San Fernando City, testified that the Chief of the First  Regional Anti-Narcotics Office requested[8] for laboratory examination of the confiscated brick of suspected marijuana dried leaves weighing 986.9 grams. Representative samples taken from the specimen were observed under a microscope, and then subjected to the Duquinoil Levine test.  As stated in the report[9] of Police Superintendent Cid, the examination gave a “POSITIVE result to the test for marijuana.”[10]

The Defense’s Evidence

Appellant Pablo Dulay, 48 years old, married, a canteen owner and a resident of Carmen West, Rosales, Pangasinan, denied the charge against him and gave a different version of the incident.

Appellant testified that on July 18, 1998, at around 12:30 p.m., he was in his canteen with his wife and some waitresses. After he served two male customers, they paid him.  He turned over the payment to his wife who gave him the change which he handed to said customers. When the two male customers started to leave, appellant called their attention to a plastic bag that they left behind. The customers took the plastic bag and proceeded outside. The customers then ran after leaving the plastic bag on top of the charcoal stand located outside the canteen’s fence.

Thereafter, three policemen, Javonillo, Torres and Perez, entered the canteen bringing with them the plastic bag left outside by the aforesaid customers. The policemen embraced appellant and took his wallet, got the money in his wallet and returned the wallet to him.  Appellant asked them why they did that to him.  The policemen answered that the thing inside the plastic bag belonged to appellant.  Appellant did not look at the content of the plastic bag, but denied ownership of the same.

The policemen brought appellant to their office in Binalonan, identified themselves, and showed appellant that the content of the plastic bag was marijuana.  The policemen insisted that the plastic bag was appellant’s. Appellant told the policemen that they brought it along with them.  Said response angered the policemen.  Appellant was detained in the municipal jail, and was subsequently brought to Balungao, Pangasinan.  Appellant executed a counter-affidavit.[11]

Appellant denied that he owned the marijuana, and insisted that the marijuana was brought by the narcotics agents.  He claimed that it was a frame-up by the police.[12]

Appellant testified that the incident on July 18, 1998 was not the first time that he was apprehended for illegal possession of marijuana. The first case against him was dismissed.  When he was arrested a second time, he was convicted and he applied for probation.  This case involves his third apprehension.[13]

The Trial Court’s Ruling

On January 12, 2001, the trial court rendered a decision convicting appellant of the crime charged, the dispositive portion of which reads:
WHEREFORE, premises considered, this Court finds the accused Pablo Dulay guilty beyond reasonable doubt of violating Section 4, Article II of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended.  Accordingly, he is hereby sentenced to suffer the penalty of reclusion perpetua and to pay a fine of Five Hundred Thousand Pesos (P500,000.00).

The dried marijuana leaves subject matter of this case is hereby declared forfeited in favor of the Government, and it is hereby directed that the same be turned over to the Dangerous Drugs Board for proper disposal.

SO ORDERED.[14]
The Appeal

Appellant made the following assignments of error:
        I
       
    THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF VIOLATION OF SECTION 4, ARTICLE II OF R.A. 6425 AS AMENDED.

    II

    THE COURT A QUO GRAVELY ERRED IN NOT GIVING WEIGHT AND CREDENCE TO ACCUSED-APPELLANT’S DEFENSE OF DENIAL.[15]
Our Ruling

Appellant contends that the trial court failed to consider some flaws in the testimony of prosecution witness PO3 Javonillo which affected his credibility, and that the trial court failed to give weight to his defense of denial.

Appellant points out that PO3 Javonillo made inconsistent statements in his testimony.  Javonillo allegedly claimed during direct examination that their confidential informant mentioned the name Pablo as the one engaged in selling marijuana, and that the name Pablo Dulay was known to his companion, PO2 Torres. However, on cross-examination, PO3 Javonillo testified that the informant mentioned only the name alias Bening and that it was the name Bening which was known to his companion, PO2 Torres.

We find that the aforementioned inconsistency refers to a minor matter and does not prove that appellant did not commit the crime charged.  Whether the informant named Pablo or one alias Bening as the drug pusher, the suspect was identified during the buy-bust operation to be appellant Pablo Dulay.

Appellant further contends that PO3 Javonillo initially testified that the brick of marijuana was wholly wrapped, and thereafter testified that it was partly wrapped.  PO3 Javonillo also claimed that he opened a part of said brick of marijuana and smelled a small quantity.  However, Police Superintendent Cid, the forensic chemist, testified that when the brick of marijuana was brought to their office, it was wrapped in newspaper and taped, without any opening.

A review of the transcript of stenographic notes showed that PO3 Javonillo testified that the brick of marijuana was wholly wrapped in newspaper, but partly wrapped with plastic tape;[16] hence, appellant misapprehended said testimony.  Moreover, it is probable that after PO3 Javonillo opened a part of the brick to smell its content, the police authorities took precaution in safeguarding said content by closing the opening before bringing the brick of marijuana to the laboratory for testing.

The aforementioned inconsistencies refer merely to collateral matters, which do not touch upon the commission of the crime itself or detract from the positive identification of appellant as the culprit, and therefore, do not affect the veracity and weight of prosecution witness PO3 Javonillo’s testimony.[17]

Appellant also contends that it is contrary to human experience for him allegedly to sell marijuana openly in a public place, that is, in front of his canteen along the national highway, at midday, where many people can witness it.

We disagree.

The fact that appellant was caught selling marijuana under the said circumstances shows that a busy place and selling a prohibited drug at midday are not to be considered hindrances to such activity.  It is of judicial notice that drug pushers sell their wares to any prospective customer, stranger or not, in both public or private places, with no regard for time.[18] Drug pushers have become increasingly daring and blatantly defiant of the law.[19]

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[20] suggesting ill-motive on the part of the police officers[21] or deviation from the regular performance of their duties.[22] In this case, there is no evidence showing that prosecution witness PO3 Javonillo was impelled by improper motive in testifying against appellant or that he deviated from the regular performance of his duties. Moreover, the trial court believed the testimony of PO3 Javonillo who was described to have testified “in a clear, convincing and forthright manner.”[23] The findings of the trial court on the credibility of witnesses and their testimonies are accorded great respect unless the trial court overlooked substantial facts and circumstances, which, if considered, would materially affect the result of the case.[24] We have carefully reviewed the records of this case, and found no reason to alter the findings of the trial court. Hence, the testimony of prosecution witness PO3 Javonillo is accorded full faith and credit.

In the prosecution of the offense of illegal sale of prohibited drugs, what is material is the proof that the transaction or sale actually took place, coupled with the presentation in court of the corpus delicti as evidence.[25]

In this case, the testimonial evidence of prosecution witness PO3 Javonillo proved that appellant sold to  him (as poseur-buyer) one (1) brick of marijuana for P1,500.  PO3 Javonillo testified, thus:

xxx      xxx        xxx
Q         

And what did you do after you proceeded to the front of the house of accused Pablo Dulay?

A          The confidential informant introduced me, sir.
  
Q          And how were you introduced by the confidential informant to the accused, Pablo Dulay?
A          That I was interested and willing to buy marijuana, sir.
  
Q          And what did the accused, Pablo Dulay, say or do after the confidential informant introduced you to him?
A     He told me if how much should I buy, sir.
  
Q          And what did you say or do after the accused, Pablo Dulay, asked you how much marijuana will you buy?
A          He answered that he has (1) kilo or (1) brick of marijuana and the price is P1,500.00, sir.
  
Q          And what did you tell the accused,  Pablo Dulay, after he told you that he has one (1) kilo or one (1) brick of marijuana and he told you that the price is P1,500.00?
A     I told him that I will get or buy one (1) brick.
  
Q          And after you told  Pablo Dulay that you are interested to buy or you wanted to buy one (1) brick of marijuana, what, if any, did Pablo Dulay do?
A          He answered to wait for a minute, sir.
  
Q          And where did the accused Pablo Dulay proceed, after he told you to wait for a minute?
A          He entered his house, sir.
  
Q          And did Pablo Dulay ever return to the front of his house where you were with the informant after he entered his house?
A          Yes, sir, bringing one (1) brick of marijuana wrapped with a newspaper.
  
xxx      xxx        xxx
  
Q          And what happened next, Mr. Witness, after the accused Pablo Dulay returned to you from his house, bringing with him the one (1) brick of marijuana?
A          He handed to me the stuff, sir.
  
Q          And what did you do after he handed to you the stuff?
A     I examined it, sir.
  
Q          You said that you examined the stuff.  What did you find after examining the stuff?
A          After examining and [finding] that it was really a marijuana, I gave the amount of P100.00 which has a boodle money (sic), sir.
  
Q          And what happened after you handed the accused, Pablo Dulay, the P100.00 with the boodle money?
A          After he received the money and the boodle money, I immediately executed my pre-arranged signal, sir.
  
Q          What was the pre-arranged signal, Mr. Witness?
A          By scratching my head with my left hand, sir.
  
Q          And when you scratched your head with your left hand which was your pre-arranged signal, what happened next?
A          My two (2) companions immediately rushed in and arrested Pablo Dulay, sir.[26]
The foregoing shows that appellant was caught selling marijuana to PO3 Jovanillo in a buy-bust operation.  A buy-bust operation is a form of entrapment legally employed by peace officers as an effective way of apprehending drug dealers in the act of committing an offense.[27] Such police operation has judicial sanction as long as it is carried out with due regard to constitutional and legal safeguards,[28] as found in this case.

In addition to the testimonial evidence proving the illegal sale of marijuana, the confiscated brick of marijuana was presented before the court and identified by PO3 Javonillo,[29] and Police Superintendent Cid.[30] Moreover, Physical Science Report No. D-122-98, which contained the result of the laboratory examination, confirmed that the confiscated specimen was indeed marijuana. [31]

Appellant’s defense of denial is inherently a weak defense[32] and cannot prevail over the positive identification by prosecution witness, PO3 Javonillo, that appellant sold one brick of marijuana to him.[33] Negative and self-serving, denial deserves no weight in law when unsubstantiated by clear and convincing evidence.[34]

Furthermore, appellant’s defense of frame-up has been invariably viewed by us with disfavor for it can easily be concocted and, like denial, is a common and standard line of defense in most prosecutions arising from violations of the Dangerous Drugs Act.[35]

The trial court did not believe appellant’s defense of frame-up and held, thus:
This Court is not convinced of the accused’s defense of frame-up.

While claiming that the police officers were ill-motivated by the prospect of pecuniary benefit, there is nothing in his entire testimony to indicate that the police officers openly demanded, or tried to extort, money from him during his apprehension at the canteen and up to the time he was brought and detained in Binalonan and Balungao.

His allegation also that the police officers took the money from his wallet when he was apprehended is rendered doubtful by his failure to mention how much money was actually taken.  Had he specified the exact amount, and it turned out to be substantial, then it may lend credence to the theory that the police officers were impelled to fabricate charges and falsely testify against him to cover-up their act of taking the money without his consent.[36]
Considering that appellant failed to present clear and convincing evidence to prove the defense of frame-up, such defense must fail.[37]

The Penalty


Any person who, unless authorized by law, sells marijuana, a prohibited drug, shall be punished with  reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos[38] if 750 grams or more of marijuana is sold.[39]

In this case, appellant was caught selling one brick of marijuana that weighed 986.9 grams.[40] The trial court correctly imposed the lesser penalty of reclusion perpetua, in the absence of any aggravating circumstance in the commission of the crime.[41] It also properly fined appellant in the amount of  P500,000.

WHEREFORE, the decision of the Regional Trial Court of Rosales, Pangasinan, Branch 53, in Criminal Case No. 3879-R, finding appellant Pablo Dulay guilty beyond reasonable doubt of violating Section 4, Article II of RA No. 6425 (The Dangerous Drugs Act of 1972, as amended) and sentencing him to suffer the penalty of reclusion perpetua and to pay a fine of Five Hundred Thousand Pesos (P500,000)  is hereby AFFIRMED.

Costs de oficio.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Panganiban, Ynares-Santiago, and Carpio, JJ., concur.



[1] Records, p. 1.

[2] Records, pp. 26-27.

[3] Also spelled “Benzon” in the TSN.

[4] TSN, October 5, 1999, pp. 3-7; June 21, 2000, p. 5.

[5] TSN, October 5, 1999, pp. 8-13; June 28, 2000, pp. 2-17.

[6] Exh. “E,” Records, p.  6.

[7] TSN, October 5, 1999, p. 17.

[8] Exh. “D,” Records, p. 5.

[9] Exh. “G,” Records, p. 65.

[10] Exh. “G-2,” Records, p. 65; TSN, August 16, 1999, pp. 3-8.

[11] Exhs. “1 to 1-A,” Records, pp. 12-13; TSN, November 15, 2000, pp. 2-9.

[12] TSN, November 15, 2000, pp. 10, 13-14.

[13] TSN, November 15, 2000, pp. 10-11.

[14] Rollo, p. 49.

[15] Rollo, pp. 36-37.

[16] TSN, June 28, 2000, pp. 11-13.

[17] People v. Irinea, 164 SCRA 121, 127 (1988).

[18] People v. Beriarmente, 365 SCRA 747, 754 (2001).

[19] Ibid.

[20] People v. Saludes, G.R. No. 144157, June 10, 2003; People v. Barita, 325 SCRA 22, 37 (2000); People v. Khor, 307 SCRA 295, 326 (1999).

[21] People v. Khor, supra.

[22] People v. Ganenas, 364 SCRA 582, 595-596 (2001).

[23] Rollo, pp. 48-49.

[24] People v. Barita, supra, note 20, at 30.

[25] People v. So, 370 SCRA 252, 260-261 (2001), citing  People v. Uy, 327 SCRA 335, 358 (2000).

[26] TSN, October 5, 1999, pp.  9-12.

[27] People v. Chua, 363 SCRA 562, 583 (2001).

[28] Ibid.

[29] TSN, October 5, 1999, p. 17.

[30] TSN,  August 16, 1999, p. 6;

[31] Exhs. “G to G-2,” Records, p. 65.

[32] People v. Arlee, 323 SCRA 201, 214 (2000).

[33] People v. Concepcion, 361 SCRA 716, 733-734 (2001).

[34] People v. Ganenas, supra, note 22, at 594.

[35] People v. Barita, supra, note 20, at  38.

[36] Rollo, p. 48.

[37] People v. Barita,  supra, note 20, at  39.

[38] RA No. 6425, Section 4.  Sale, Administration, Delivery, Distribution and  Transportation of Prohibited Drugs.—The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, or act as a broker in any of such transactions.

Notwithstanding the provision of Section 20 of this Act to the contrary, if the victim of the offense is a minor, or should a prohibited drug involved in any offense under this Section be the proximate cause of the death of a victim thereof, the maximum penalty herein provided shall be imposed.

[39] Section 20, Article IV, RA No. 6425.

[40] Exh. “G,”  Records, p. 65.

[41] The Revised Penal Code, 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.



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