544 Phil. 123
CHICO-NAZARIO, J.:
On or about August 6, 2002, in Pasig City and within the jurisdiction of this Honorable Court, the accused, who is not being authorized by law, did, then and there willfully, unlawfully and feloniously sell, deliver and give away to PO2 Danilo S. Damasco, one (1) heat-sealed transparent plastic sachet containing 0.42 gram of white crystalline substance which was found positive to the test for methamphetamine hydrochloride (shabu), a dangerous drug, in violation of the said law.[4]The case was raffled to Branch 164 of the RTC of Pasig City and docketed as Criminal Case No. 11566-D.
Appellant denies the charge. He insists that there was no buy-bust operation and that the shabu (methamphetamine hydrochloride) allegedly sold by him to the poseur buyer was planted evidence. He claims that the trumped-up charge is a way of getting even with him because he, together with his wife, had filed a case before the National Police Commission (NAPOLCOM) for grave misconduct against several policemen (PO2 Joel Tapec, PO1 Christopher Semana and five John Does) assigned at the Station Drug Enforcement Unit of the Pasig Police Station, for entering and robbing their house on 5 February 2002. He further claims that the policemen who arrested him for allegedly selling shabu were the John Does mentioned in the complaint he and his wife filed with the NAPOLCOM.VERSION OF THE PEOPLE
On August 6, 2002, at about 9:30 o'clock in the evening, a confidential informant stepped inside the office of the Station Drug Enforcement Unit of the Pasig Police Station, Pasig City and informed SPO4 Numeriano S. De Lara, Officer In-Charge of that unit, that a certain alias Bernie was selling shabu at his place along Santiago Street, in Barangay Bagong Ilog, Pasig City. Immediately, SPO4 De Lara organized a team to conduct a surveillance operation and the entrapment of alias Bernie, if warranted by the situation. The team was composed of PO2 Danilo S. Damasco, PO2 Montefalcon, PO2 Orig and SPO2 Zipagan who was the team leader. PO2 Damasco was designated to act as poseur-buyer in the buy-bust operation while the other police officers would serve as his back-ups to assist in the possible apprehension of alias Bernie. After a short briefing, the team of police operatives, including the confidential informant, proceeded to the target place at Santiago Street, Bagong Ilog, Pasig City. SPO2 Dante Zipagan, the team leader, instructed the confidential informant to first check and look for the whereabouts of alias Bernie. The informant, after five minutes, returned and informed the team that he found alias Bernie in front of his house and the team decided to proceed with the planned entrapment of alias Bernie. PO2 Damasco and the informant then walked towards the house of alias Bernie while the back-up police officers placed themselves strategically in different positions where they could see PO2 Damasco and the informant in the act of negotiating with alias Bernie. PO2 Damasco and the informant saw alias Bernie conversing with a male person in front of his house. After the informant greeted alias Bernie, he introduced PO2 Damasco to alias Bernie whose real name is Bernardo Nicolas, the accused herein, as a user of shabu and would like now to buy some Php500.00 worth of the substance from him. Alias Bernie, responded that he still had one piece of that stuff and was willing to sell it to poseur-buyer Damasco. Accused asked for the money which was pre-marked by Damasco with initials DSD (Exh. D-1) which stands for the name of Danilo S. Damasco. Damasco then handed the five hundred peso bill (Exh. D) to accused who accepted it. Accused, in return, gave Damasco one plastic sachet containing white crystalline substance which looked like that of shabu. For a moment, PO2 Damasco examined the plastic sachet and its content and then announced to the accused he was a police officer and arresting him for violation of the drugs law. Accused Bernardo Nicolas alias Bernie got shocked and surprised. As Damasco was holding the accused, the back-up officers arrived and assisted him in handling the accused. Damasco recovered the buy-bust money and the police team took him away to their station, where he was turned over to a police investigator together with the small plastic sachet of suspected shabu that Damasco had purchased from the accused. SPO4 Numeriano S. De Lara sent the small plastic sachet containing white crystalline substance which was then marked with EXH.-A BFN/080602 to the Eastern Police District Crime Laboratory Office at St. Francis St., Mandaluyong City, as per his letter memorandum dated August 6, 2002 (Exhs. B and B-1). The specimen was received at the EPD Crime Laboratory office by P/Insp. Delfin Torregoza, a Forensic Chemical Officer, who weighed and examined the specimen which he found to contain 0.42 gram of white crystalline substance which was tested positive for methamphetamine hydrochloride as per his Chemistry Report No. D-1501-02E (Exhs. C and C-1). Accused Bernardo F. Nicolas was consequently charged with Violation of Section 5, Article II of R.A. 9165.VERSION OF DEFENSEx x x x
[Appellant] testified that on August 6, 2002 at about 10:00 o'clock in the evening, he was outside of his house conversing with his brother, Jose Nicolas, and a friend named Arnold Mendez. He had just came (sic) out of his house in order to close the billiard salon that he owned. As they were then huddled in animated conversation, two motor vehicles stopped in front of his billiard parlor, a car and a van. The passengers of the van alighted and one of them pointed a gun at him. As accused was not familiar with the men, he could not recognize them. He learned, later on, that the man who poked a gun at him was PO2 Danilo Damasco who was accompanied by other persons numbering about four or five of them. Damasco warned him not to move, holding and waiving in his hand a plastic sachet which Damasco said he bought from accused Bernardo Nicolas. The police officers then proceeded to put handcuffs on the hands of the accused, in spite of his protest denying anything to do with the plastic sachet of alleged shabu being displayed by Damasco. The police officers also handcuffed and arrested Arnold Mendez. Jose Nicolas did not allow himself to be arrested and handcuffed. When he sensed that he would be handcuffed, he immediately fled and ran into his house, locking himself in. Luckily for him, the police officers did not pursue him any longer. He just watched the incident by peeping through the window of his house. Accused Bernardo Nicolas alias Bernie and Arnold Mendez, were then forced into the police vehicle and taken to the police station, although Nicolas showed resistance which forced the police officers to physically carry him into their vehicle. Accused Bernard Nicolas was then charged with Violation of Section 5, Article II, R.A. 9165.
WHEREFORE, the court finds accused BERNARDO F. NICOLAS GUILTY beyond reasonable doubt, as principal of violation of Section 5, Article II, R.A. 9165 and hereby imposes upon him the penalty of life imprisonment and a fine of five hundred thousand pesos (P500.00),[14] with the accessory penalties provided under Section 35 thereof.[15]From the decision, appellant filed a Notice of Appeal informing the court that he is appealing the same to the Court of Appeals.[16] Though the Notice of Appeal specified that the decision is being appealed to the Court of Appeals, the trial court nonetheless forwarded the records of the case to the Supreme Court pursuant to Section 3, Rule 122 of the Rules of Court.[17]
Appellant observed that (1) the policemen did not conduct surveillance first; (2) they did not have any agreement as regards the money to be used in buying the shabu; and (3) they failed to talk about any signal to inform the back-up policemen that the transaction has been consummated. He contends that the absence of these things is unusual and that it made even more doubtful that the buy-bust operation really took place.I.
THE TRIAL COURT GRAVELY ERRED IN GIVING FAITH AND CREDENCE TO THE UNRELIABLE TESTIMONIES OF THE PROSECUTION WITNESSES AND IN TOTALLY DISREGARDING THE VERSION OF THE DEFENSE.II.THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF THE CRIME CHARGED DESPITE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.
Appellant tries to discredit PO2 Damasco and SPO2 Zipagan by showing an inconsistency in their testimonies regarding the condition of the scene of the incident. He points out that PO2 Damasco stressed that the place was dark while SPO2 Zipagan said that the area was well-lighted.[33]
A: And we briefed and after a short briefing we proceeded to the alleged residence of Bernie and when we reached the place, I particularly saw the subject person in front of the alleged house.Q: You said we, whom are you referring to as those who went with you to the house of Bernie?A: The confidential informant.Q: After reaching the house of Bernie, what happened there?A: I saw the subject person infront of his alleged house talking to another male person.Q: What was the general condition of that place outside the house of Bernie when you saw him?A: Dim light, sir.Q: After you first saw Bernie talking with somebody else, what did you do?A: The confidential informant greeted alias Bernie and after greeting said person the other male person he was talking to went farther from us and they conversed.Q: And after that conversation between your informant and Bernie, what happened?A: The confidential informant introduced me as a shabu user and as a customer.Q: How far were you from Bernie when you were introduced?A: Only two (sic) away.Q: Less than a meter?A: Yes, sir.Q: What was the response of Bernie as you were introduced as a shabu user?A: He checked my personality first and he asked me if I will get the stuff, he asked me in tagalog, kukuha ka ba?Q: And what did you tell him?A: I answered him, kung mayroon kukuha ako.Q: And what was his answer?A: He answered me that, mayroon kaya tamang-tama kasi isa na lang itong natitira sa akin panggamit ko sana.Q: At that very moment, after you were told by Bernie isa na lang ang natitira, what did you?A: I asked him kung puwede pang bilhin and then he told me, isa na lang ito panggamit ko, magkano ba ang kukunin mo?Q: What was your answer?A: I told him, P500.00 worth.Q: And what is [his] reply?A: Okay, ibibigay ko na lang sa inyo.Q: And what happened next?A: He asked my payment first.Q: And what did you do after he asked your payment?A: I gave him the pre-marked money.Q: What (sic) that bill made off?A: P500.00 bill.Q: Where did you put that marking in that bill?A: I put the marking on the upper right portion of the bill inside the 500.Q: What are the markings did you put there?A: I put my initials DSD.Q: Now after you gave him that P500.00 marked money, what else happened?A: After he received the pre-marked money then he gave me one (1) plastic sachet containing white crystalline substance after receiving said I examined the plastic sachet.Q: After that examination of yours, what did you do?A: After a brief examination immediately I introduced myself as a police officer and subsequently, arrested alias Bernie.Q: After you introduced yourself as a police officer, what was the reaction of alias Bernie?A: He was shocked, sir.Q: Did he tell you anything?A: None, sir.Q: And what did you do after arresting him immediately?A: After informing his constitutional right I recovered the pre-marked money.Q: You mean, you frisked him, Mr. Witness?A: Yes, sir.Q: What else did you recover from him aside from the mark money?A: Nothing more.[32]
The evidence does not show that Damasco and Zipagan were moved by ill-will in testifying against the accused. There was no ill feeling or personal animosity existing between the police officers and the accused at the time of the latter's arrest. It is true that accused Bernardo F. Nicolas and his common-law wife Susan Dela Cruz Villasoto filed an administrative case against PO2 Joel Tapec and PO1 Christopher Semana, both of the Pasig City Police Station for grave misconduct before the National Police Commission which is docketed as ADM CASE No. 2003-008 (NCR). But the filing of this case against Tapec and Semana is not enough reason for Damasco and Zipagan to fabricate or plant evidence against the accused. There was absolutely no reason at all for them to risk their lives and career to go and plant evidence against the accused which is in violation of Section 29 of R.A. 9165 that imposes upon any person found guilty of planting any dangerous drug regardless of quantity and purity, the penalty of death. These police officers are presumed to know this law and the court believes that these police officers do not wish to lose their lives by fabricating evidence against innocent individuals. Accused Bernardo Nicolas, naturally, was expected to deny the accusation against him, for admission would automatically result in conviction. The testimony of his common-law wife, Susan Dela Cruz Villasoto is not much of help to the accused�[s] defense. Since she did not witness what transpired when accused went out of the house in the evening of August 6, 2002. All that she substantially testified to was that she heard shouting outside of their house and saw three persons forcibly carrying her husband to the other side of the road. (TSN, July 7, 2003, p. 4). Witness Jose F. Nicolas, to the mind of the court is not a credible witness. He claimed he was present at the time accused was arrested. He said he fled in order to avoid being handcuffed and arrested by the police when his brother alias Bernie was arrested. He did not even visit his brother in jail. He talked to him only on August 25, 2003 to discuss with him his testimony in court. (TSN, September 15, 2003, p. 13). Being accused's close relative, Jose Nicolas is expected to testify favorably in behalf of the accused whose testimony, of course, is not sufficient to overthrow the strength and weight of the testimonies of the police officers Damasco and Zipagan. [36]We likewise find appellant's declaration that the policemen who arrested him were the very same ones who robbed his house on 5 February 2002 to be a mere afterthought in order that he may justify his claim of improper motive on the part of the policemen. How convenient, indeed, it is for him to make such a declaration. From the time of the alleged break-in in his house on 5 February 2002 until the time he was arrested on 6 August 2002 for selling shabu, he never lifted a finger to try and find out the identities of the alleged five John Does mentioned in his complaint with the NAPOLCOM. He could have easily gone to the Station Drug Enforcement Unit of the Pasig Police Station, but this he did not do. Only when he was arrested during an entrapment operation did he make such a claim. The timing thereof renders such declaration very dubious and unreliable.
SEC. 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. - 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 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 0.42 gram of shabu to PO2 Damasco, the trial court, as sustained by the Court of Appeals, imposed the penalty of life imprisonment and a fine of P500,000.00 in accordance with Article 63(2) [42]of the Revised Penal Code.
SEC. 98. Limited Applicability of the Revised Penal Code. - Notwithstanding any law, rule or regulation to the contrary, the provisions of the Revised Penal Code (Act No. 3815), as amended, shall not apply to the provisions of this Act, except in the case of minor offenders. Where the offender is a minor, the penalty for acts punishable by life imprisonment to death provided herein shall be reclusion perpetua to death. (Underscoring supplied.)With the aforesaid section, the provisions of the Revised Penal Code shall no longer apply to the provisions of the Drugs law except when the offender is a minor. Thus, Article 63(2) of the Revised Penal Code shall not be used in the determination of the penalty to be imposed on the accused. Since Section 98 of the Drugs Law contains the word "shall," the non-applicability of the Revised Penal Code provisions is mandatory, subject only to the exception in case the offender is a minor.