108 OG No. 12, 1255 (March 19, 2012)
On appeal to this Court is the Decision,
[1] dated November 30, 2006, of the Court of Appeals (
CA) in CA-G.R. CR-H.C. No. 01138, which affirmed the Decision
[2] of the Regional Trial Court (
RTC),
Branch 70, Pasig City, in Criminal Case Nos. 12450-52-D. The RTC
convicted Arielito Alivio y Oliveros and Ernesto dela Vega (collectively
referred to as
appellants) of violating Sections 5, 11 and 12,
Article II of Republic Act (R.A.) No. 9165 or the Comprehensive
Dangerous Drugs Act of 2002.
The Arraignment and Plea
In Criminal Case No. 12450-D, the Information charged the appellants of selling
shabu, as follows:
the
accused, conspiring and confederating together, and both of them
mutually helping and aiding one another, not being lawfully authorized
by law, did then and there willfully, unlawfully and feloniously sell,
deliver and give away to PO2 Lemuel Laro, a police poseur-buyer, one (1)
heat-sealed transparent plastic sachet containing six (6) centigrams
(0.06 gram) of white crystalline substance, which was found positive to
the test for methamphetamine hydrochloride, a dangerous drug, in
violation of the said law.[3]
In Criminal Case No. 12451-D, Dela Vega was charged of possessing
shabu under the following Information:
the
accused, not being lawfully authorized to possess any dangerous drug;
did then and there willfully, unlawfully and feloniously have in his
possession and under his custody and control one (1) heat-sealed
transparent plastic sachet containing ten (10) decigrams (0.10 gram), of
white crystalline substance, which was found positive to the test for
methamphetamine hydrochloride, a dangerous drug, in violation of the
said law.[4]
Finally,
in Criminal Case No. 12452-D, Alivio was charged of possessing drug
paraphernalia consisting of two disposable lighters, an improvised
tooter and an improvised burner. The pertinent portion of the
Information states:
the accused, not being lawfully
authorized to possess paraphernalia or otherwise use any dangerous drug,
did then and there willfully, unlawfully and feloniously have in his
possession two (2) pcs. of disposable lighters, one (1) improvised
tooter and one (1) improvised burner, which are all instruments,
equipment, apparatus or paraphernalia, fit or intended for smoking,
sniffing, consuming or introducing methamphetamine hydrochloride,
commonly known as shabu, a dangerous drug, in violation of the said law.[5]
The appellants pleaded not guilty to all the charges and trial on the merits followed.
The Version of the Prosecution
The
prosecution's case relied on the theory that the police apprehended the
appellants during a buy-bust operation conducted at Alivio's residence.
During the buy-bust operation, the police found drug paraphernalia at
Alivio's residence while a search on Dela Vega's person yielded one
plastic sachet of
shabu which the police seized.
The
prosecution's evidence showed that at around 9:30 p.m. of May 20, 2003,
the Pasig City Police received a tip from an asset that one "Ariel" was
rampantly selling illegal drugs in Bagong Ilog, Pasig City. A buy-bust
team was immediately formed in coordination with the Philippine Drug
Enforcement Agency. The buy-bust money, which consisted of two (2) 100
peso bills, was prepared and marked with the symbol, "3L." PO2 Lemuel
Lagunay Laro was designated to act as the poseur-buyer.
Together
with SPO3 Lemuel Matias and PO1 Allan Mapula, PO2 Laro and the asset
went to the house of Ariel. While the rest of the buy-bust team
strategically positioned themselves at the target area, PO2 Laro and the
asset met Ariel. The asset introduced PO2 Laro to Ariel who was later
on identified as Alivio. The asset told Alivio that they wanted to buy
shabu. Alivio asked how much they wanted to buy, to which the asset replied: "
dalawang daan lang p're at saka puwede kaming gumamit d'yan?"
The two were ushered into the second floor of the house where they saw
dela Vega seated in front of a table with drug paraphernalia. PO2 Laro
then gave the buy-bust money to Alivio who handed it to Dela Vega. The
latter then took out from his pocket one plastic sachet of
shabu which he gave to Alivio who handed it to PO2 Laro. After the exchange,
PO2
Laro introduced himself as a police officer and arrested Alivio and
Dela Vega. The asset made a signal for the buy-bust team to come inside
the house. SPO3 Matias searched Dela Vega and found him in possession
of one plastic sachet of
shabu. The buy-bust team also retrieved
the drug paraphernalia on top of the table, which paraphernalia they
correspondingly marked. The buy-bust team took Alivio, Dela Vega and the
confiscated items to the police station for investigation. Afterwards,
the confiscated items were taken by PO1 Mapula to the PNP Crime
Laboratory for examination. The two (2) plastic sachets tested positive
for
shabu.
By agreement of the prosecution and the
defense, the testimony of forensic chemist P/Insp. Joseph Perdido was
dispensed with and they entered stipulations on:
1) | The
due execution and genuineness of the Request for Laboratory Examination
dated May 20, 2003 which was marked in evidence as Exhibit "A" and the
stamp showing receipt thereof by the PNP Crime Laboratory as Exhibit
"A-1"; |
|
|
2) | The
due execution and genuineness, as well as the truth of the contents, of
Chemistry Report No. D-940-03E dated May 12, 2003 issued by Forensic
Chemist P/Insp. Joseph M. Perdido of the PNP Crime Laboratory, Eastern
Police District, Saint Francis St., Mandaluyong City, which was marked
in evidence as Exhibit "B", the finding and conclusion as appearing on
the report as Exhibit "B-1" and the signature of the forensic Chemist
over his typewritten name likewise as appearing on the report as Exhibit
"B-2"; |
|
|
3) | The
existence of the two (2) plastic sachets and other paraphernalia, but
not their source or origin, contained in an envelope, the contents of
which were the subject of the Request for Laboratory Examination, which
where marked in evidence as follows: as Exhibit "C" (the envelope), as
Exhibit "C-1" (the 1st plastic sachet), as Exhibit "D" (the
improvised tooter with markings EXH-E AAO dated 05-20-03), as Exhibit
"E" (the improvised burner) and as Exhibits "F-1" & "F-2" (the two
disposable lighters).[6] |
The Version of the Defense
The appellants anchored their defense on denial and frame-up. They denied selling
shabu and
claimed that they were together that night drinking at the second floor
of Alivio's residence. They also claimed that five (5) men (who turned
out to be policemen) suddenly barged in on them looking for a person
named "Bon-bon." When they replied that neither of them was Bon-bon, the
policemen frisked and arrested them. The policemen took from the
appellants their earnings for that day and the P5,000.00 cash they found
in the house. The appellants tried to resist arrest and suffered
injuries as a result.
[7]Alivio additionally asserted that he could not have sold
shabu to
PO2 Laro since he knew him to be a policeman. Alivio claimed that he
was a former driver of Atty. Nelson Fajardo whom he used to accompany to
the police station where PO2 Laro was assigned.
The Ruling of the RTC
On
February 28, 2005, the RTC convicted the appellants of all charges
laid. The RTC relied on the presumption of regularity in the buy-bust
operation and the lack of improper motive on the part of the police
officers. The RTC rejected the proferred denial and frame-up as defenses
as they are inherently easy to concoct, and found that the prosecution
sufficiently established all the elements of the crimes charged and the
identity of the appellants as perpetrators. The RTC thus concluded:
WHEREFORE, premises considered, judgment is hereby rendered, as follows:
In Criminal Case No. 12450-D both accused Arielito Alivio and Ernesto Dela Vega are hereby found GUILTY beyond
reasonable doubt of the offense of Violation of Section 5, Article II,
Republic Act 9165 (illegal sale of shabu) and are hereby sentenced to LIFE IMPRISONMENT and to solidarily pay a FINE of Five Hundred Thousand Pesos (PHP500,000.00).
In Criminal Case No. 12451-D accused Ernesto dela Vega is hereby found GUILTY beyond
reasonable doubt of the offense of Violation of Section 11, Article II,
Republic Act 9165 (illegal possession of shabu) and is hereby sentenced
to Twelve (12) Years and One (1) Day to Twenty (20) Years and to pay a Fine of Three Hundred Thousand Pesos (PHP 300,000.00).
In Criminal Case No. 12452-D accused Arielito Alivio is hereby found GUILTY beyond
reasonable doubt of the offense of Violation of Section 12, Article II,
of Republic Act 9165 (illegal possession of drug paraphernalia) and is
hereby sentenced to Six (6) Years and One (1) Day to Four (4) Years and a FINE of Ten Thousand Pesos (PHP 10,000.00).[8]
The appellants appealed to the CA.
The Ruling of the CA
On
November 30, 2006, the CA affirmed the RTC decision. The CA took into
account the consistent testimonies of the prosecution witnesses to
support the presumption that the police officers regularly performed the
buy-bust operation. The CA likewise ruled that the appellants failed to
substantiate their defenses.
The Issue
The appellants raised the following lone assignment of error:
THE
[CA] ERRED IN FINDING THE [APPELLANTS] GUILTY BEYOND REASONABLE DOUBT
FOR VIOLATION OF THE PROVISIONS OF REPUBLIC ACT NO. 9165.[9]
The
appellants argue that the lower courts erred in evaluating the
testimonial evidence when they placed undue reliance on the presumption
of regularity and the absence of improper motive on the part of the
police officers to perpetuate the claimed irregularities. The appellants
assert that the presumption of regularity cannot take precedence over
the presumption of innocence in their favor.
The appellants also
fault the lower courts for disregarding the defense's evidence that
showed Alivio's familiarity with PO2 Laro as a policeman. They emphasize
that this evidence was corroborated by the testimony of defense witness
Atty. Fajardo.
Finally, the appellants contend that the identities of the subject
shabu were not sufficiently proven since the seized items were not marked at the time the appellants were apprehended.
The Court's Ruling
We find no reversible error committed by the RTC and the CA in convicting the appellants of the crimes charged.While
the presumption of innocence is the highest in the hierarchy of
presumptions, it remains a rebuttable presumption. In a criminal case,
the presumption of innocence can be overcome by the presumption of
regularity when the latter is accompanied by strong evidence supporting
the guilt of the accused.
[10]
Even without the presumption of regularity, a drug conviction can be
sustained through competent evidence establishing the existence of all
the elements of the crimes charged.
In this case, although the
presumption of regularity did not arise considering the evident lapses
the police committed in the prescribed procedures, we rule that the
prosecution's evidence sufficiently established all the elements of the
three (3) crimes charged and the identity of the appellants as the
perpetrators.
The existence of the buy-bust operationProsecutions
involving illegal drugs depend largely on the credibility of the police
officers who conducted the buy-bust operation. Thus, we generally defer
to the assessment on this point by the trial court as it had the
opportunity to directly observe the witnesses, their demeanor, and their
credibility on the witness stand.
[11] Our independent examination of the records shows no compelling reason to depart from this rule.
First,
the lower courts found the testimonies of PO2 Laro and SPO3 Matias
consistent, positive and straightforward. These testimonies were
corroborated by PO1 Mapula who testified that the appellants were
apprehended through a buy-bust operation.
Second, the
records reveal the lack of improper motive on the part of the buy-bust
team. Appellant Alivio even admitted that he had no idea why the police
officers filed the present case against him.
[12] Alivio also denied police extortion.
[13]Third,
the appellants' failure to file cases against the buy-bust team for
planting evidence undoubtedly supports the prosecution's theory that the
appellants were arrested because they were caught
in flagrante delicto selling
shabu.
Fourth, the following documentary evidence presented by the prosecution corroborates the existence of an actual buy-bust operation:
(a)
The Pre-Opns Reports, made part of the records, showed that
anti-narcotics operations were conducted on May 20, 2003 against one
"@Ariel" who was "allegedly involved in selling/trading of dangerous
drugs."
[14](b) The existence of the buy-bust money,
[15] bearing the marking "3L," was presented during the trial as part of PO2 Laro's testimony.
[16] According to PO2 Laro, the marking stood for his initials which he placed on the buy-bust money for easy identification.
(c) The Affidavits of Arrest
[17]
by PO2 Laro and SPO3 Matias executed immediately after the arrest of
the appellants showed that the arrests were made pursuant to a buy-bust
operation.
[18]Familiarity
The
defense failed to sufficiently prove the alleged familiarity of
appellant Alivio with PO2 Laro. The testimony of defense witness Atty.
Fajardo failed to give out specific details on the dates and occasions
when he supposedly talked to PO2 Laro in the presence of Alivio.
[19]
Moreover, the evidence also shows a time gap between Alivio's
employment with Atty. Fajardo (from 2000 to 2001) and the occurrence of
the buy-bust operation (in 2003). As against these sketchy claims, PO2
Laro testified that Alivio failed to recognize him during the buy-bust
operation.
[20]In any event, in
Gwyn Quinicot v. People,
[21]
we held that it is not the existing familiarity between the seller and
the buyer, but the agreement and acts constituting the sale and delivery
of the illegal drugs, that is crucial in drug-related cases:
What
matters in drug related cases is not the existing familiarity between
the seller and the buyer, but their agreement and the acts constituting
the sale and delivery of the dangerous drug. Besides, drug pushers,
especially small quantity or retail pushers, sell their prohibited wares
to anyone who can pay for the same, be they strangers or not. It is of
common knowledge that pushers, especially small-time dealers, peddle
prohibited drugs in the open like any article of commerce. Drug pushers
do no confine their nefarious trade to known customers and complete
strangers are accommodated provided they have the money to pay.[22] [Citations omitted]
In this case, the prosecution's evidence sufficiently established the exchange of the
shabu and the buy-bust money between the appellants and PO2 Laro.
The identity of the confiscated shabu
and/or drug paraphernalia In
ascertaining the identity of the illegal drugs and/or drug
paraphernalia presented in court as the ones actually seized from the
accused, the prosecution must show that: (a) the prescribed procedure
under Section 21(1), Article II of R.A. No. 9165 has been complied with
or falls within the saving clause provided in Section 21(a), Article II
of the Implementing Rules and Regulations (IRR) of R.A. No. 9165;
and (b) there was an unbroken link (not perfect link) in the chain of custody with respect to the confiscated items.
Section
21(1), Article II of R.A. No. 9165 -- that prescribes the procedure to
be observed by the authorities in handling the illegal drug and/or drug
paraphernalia confiscated -- 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;
This
provision is elaborated on under Section 21(a) of the IRR which provides
a saving clause in case the prescribed procedure is not complied with.
Under this saving clause,
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.
The chain of custody rule requires
the identification of the persons who handled the confiscated items for
the purpose of duly monitoring the authorized movements of the illegal
drugs and/or drug paraphernalia from the time they were seized from the
accused until the time they are presented in court. Section 1(b) of
Dangerous Drugs Board Regulation No. 1, Series of 2002 defines the chain
of custody rule in the following manner:
b. `Chain of Custody" means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage,
from the time of seizure/confiscation to receipt in the forensic
laboratory to safekeeping to presentation in court for destruction.
Such record of movements and custody of seized item shall include the
identity and signature of the person who held temporary custody [was] of
the seized item, the date and time when such transfer of custody made
in the course of safekeeping and use in court as evidence, and the final
disposition[.]
In this case, although the prescribed
procedure under Section 21(1), Article II of R.A. No. 9165 was not
strictly complied with, we find that the integrity and the evidentiary
value of the seized items were properly preserved by the buy-bust team
under the chain of custody rule.
(a)
The first link - The records show that the
shabu and
the drug paraphernalia were immediately marked at the scene by PO2 Laro
and SPO3 Matias before they proceeded to the police station.
[23] PO2 Laro marked the plastic sachet containing
shabu subject of the buy-bust sale, with "AAO 05-20-03" that stood for the initials of Alivio and the date of the buy-bust sale.
[24] In turn, SPO3 Matias marked the retrieved
shabu and the drug paraphernalia with his signature.
[25](b)
The second link
- The records also disclose that after the respective markings were
made, PO2 Laro and SPO3 Matias turned over the confiscated items in
their custody at the police station for investigation. As may be
gathered from the Request for Laboratory Examination dated May 20, 2003
and prepared by SPO4 Danilo M. Tuaño, the following specimens were
recovered from the appellants and submitted for laboratory examination:
One
(1) pc heat sealed transparent plastic sachet containing undetermined
amount of white crystalline substance suspected to be shabu bought from
suspect marked as "EXH A AAO 05-20-03";
One (1) pc heat sealed
transparent plastic sachet containing undetermined amount of white
crystalline substance marked as "EXH B ECDV 05-20-03";
Two (2) pc's (sic) disposable lighter marked as "EXH C1 to C2 AAA 05-20-03";
One (1) pc improvised burner marked as "EXH D AAO 05-20-03";
One (1) pc improvised waterpipe/tooter marked as "EXH E AAO 05-20-03."[26]
(c)
The third link
- PO1 Mapula testified that he was the one who delivered the request
for laboratory examination and the specimens to the PNP Crime
Laboratory.
[27] He also testified that he turned over the specimens to one PO1 Chuidan who received them at 1:00 a.m. of May 21, 2003.
[28] Upon receipt of the specimens, PO1 Chuidan stamped the request with a "Control No. 1700-03" and wrote "D-940-03."
[29]
In this regard, a facial examination of Chemistry Report No. D-940-03E
shows that the very same specimens bearing the same markings stated in
the police request were subjected to laboratory examination, completed
at 3:15 a.m. of May 21, 2003.
[30](d)
The fourth link
- The prosecution and the defense stipulated that the specimens
examined by the forensic chemist, contained in the request for
laboratory examination, were the ones presented in court. PO2 Laro and
SPO3 Matias identified and testified that the
shabu and the drug
paraphernalia examined were the items retrieved from the appellants in
the buy-bust operation conducted on May 20, 2003.
[31]Under
the circumstances, the prosecution's evidence clearly established an
unbroken link in the chain of custody, thus removing any doubt or
suspicion that the
shabu and drug paraphernalia had been altered,
substituted or otherwise tampered with. The unbroken link in the chain
of custody also precluded the possibility that a person, not in the
chain, ever gained possession of the seized evidence.
[32]The defenses of Denial and Frame-up The appellants merely denied the buy-bust sale and their possession of the
shabu and
the drug paraphernalia. They claimed that they were framed by the
police who took their earnings and forcibly took them to the police
station. In light of the positive and credible testimony and the
concrete evidence showing the existence of the buy-bust operation, these
defenses are unworthy of belief. Dela Vega's injuries alone cannot
rebut the consistent evidence that the appellants were arrested pursuant
to a buy-bust operation. We particularly note in this regard that the
participating policemen denied that they previously knew the appellants
and that they entertained ulterior or illicit motives to frame them.
The Proper PenaltiesOn the illegal sale of
shabu (Criminal Case No. 12450-D), the appellants were caught and arrested for selling .06 gram of
shabu.
The RTC and the CA correctly imposed the penalty of life imprisonment
and a fine of P500,000.00 against the appellants, in accordance with
Section 5, Article II of R.A. No. 9165 which punishes illegal sale of
shabu with
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).
On the illegal possession of
shabu (Criminal Case No. 12451-D), dela Vega was caught in possession of .10 gram of
shabu
and was meted the penalty of twelve (12) years and one (1) day to
twenty (20) years of imprisonment and to pay a fine of P300,000.00.
Section 11, paragraph 2(3), Article II of R.A. No. 9165 provides:
(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 xxx methamphetamine
hydrochloride or "shabu."
Thus, we sustain the penalties the RTC and the CA imposed as these are within the range provided by law.
Lastly,
illegal possession of drug paraphernalia (Criminal Case No. 12452-D) is
punished under Section 12, Article II of R.A. No. 9165 that provides a
penalty of imprisonment ranging from six (6) months and one (1) day to
four (4) years, and a fine ranging from Ten thousand pesos (PP10,000.00)
to Fifty thousand pesos (P50,000.00). We thus uphold the penalty of
imprisonment of six (6) months and one (1) day to four (4) years and a
fine of P10,000.00 that the RTC and the CA imposed on Alivio.
WHEREFORE, premises considered, we
AFFIRM the
decision, dated November 30, 2006, of the Court of Appeals in CA-G.R.
CR-H.C. No. 01138 which, in turn, affirmed the decision, dated February
28, 2005, of the Regional Trial Court, Branch 70, Pasig City, in
Criminal Case Nos. 12450-52-D.
SO ORDERED. Carpio Morales, (Chairperson), Bersamin, Villarama, Jr., and
Sereno, JJ., concur.
[1]
Penned by Associate Justice Roberto A. Barrios (deceased), with the
concurrence of Associate Justices Mario L. Guariña and Lucenito Tagle
(retired); rollo, pp. 2-10.
[2] Penned by Judge Pablito M. Rojas; dated February 28, 2005. CA
rollo, pp. 23-32.
[3] CA
rollo, pp. 9-10.
[4] Id. at 11-12.
[5] Id. at 13-14.
[6] Id. at 25.
[7]
Medical Certificate, dated March 2, 2004, issued by the Rizal Medical
Center to dela Vega which showed that he had a contusion on his back;
records, p. 94.
[8] CA rollo, pp. 31-32.
[9] Id. at 45.
[10] Dissenting Opinion of Justice Arturo D. Brion in
People v. Agulay, G.R. No. 181747, September 26, 2008, 566 SCRA 571, 614-615, and
People v. Denoman, G.R. No. 171732, August 14, 2009, 596 SCRA 257, 276.
[11] People v. Concepcion, G.R. No. 178876, June 27, 2008, 556 SCRA 421, 440; and
People v. Lim, G.R. No. 141699, August 7, 2002, 386 SCRA 581, 593, citing
People v. Errojo, 229 SCRA 49 (1994), and
People v. Gomez, 229 SCRA 138 (1994).
[12] TSN, May 25, 2004, p. 8.
[13] TSN, April 26, 2004, p. 25.
[14] Records, p. 10.
[15] Exhibits "G" and "H."
[16] Records, p. 70.
[17] Dated May 21, 2003.
[18] Records, pp. 5-6.
[19] TSN, July 21, 2004, p. 38.
[20] TSN, October 6, 2003, p. 11.
[21] G.R. No. 179700, June 22, 2009, 590 SCRA 458.
[22] Id. at 471-472.
[23] TSN, October 6, 2003, p. 17.
[24] Id. at 22-23.
[25] TSN, December 3, 2003, pp. 8-9; and TSN, October 6, 2003, pp. 24- 25.
[26] Records, p. 8.
[27] TSN, February 23, 2004, p. 8.
[28] Ibid.; Records, pp. 7- 8.
[29] Records, p. 8
[30] Id. at 7.
[31] Supra note 24, and TSN, December 3, 2003, pp. 13-15.
[32] Malillin v. People, G.R. No. 172953, April 30, 2008, 553 SCRA 619, 632-633.