FIRST DIVISION
[ G.R. NO. 143705, February 23, 2007 ]RUBY DIMACUHA Y EBREO v. PEOPLE +
RUBY DIMACUHA Y EBREO, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.
D E C I S I O N
RUBY DIMACUHA Y EBREO v. PEOPLE +
RUBY DIMACUHA Y EBREO, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.
D E C I S I O N
GARCIA, J.:
In this petition for review on certiorari, petitioner Ruby E. Dimacuha seeks her acquittal by a reversal of the October 22, 1999 decision[1] of the Court of Appeals (CA) in CA-G.R. CR No. 20720 which affirmed her earlier
conviction by the Regional Trial Court of Marikina, Metro Manila, Branch 273, for violations of Sections 15[2] and 16[3] of Article III of Republic Act (RA) No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended, in
Criminal Case Nos. 96-112-D-MK and 95-63-D-MK, respectively. Dimacuha's motion for reconsideration of said decision was denied by the CA in its June 19, 2000 resolution.[4]
Criminal Case No. 95-63-D-MK of the court of origin traces its formal beginning from an Information charging petitioner of the crime of violation of Sec. 16 (Possession or Use of Regulated Drugs), Art. III of RA No. 6425, as amended. A companion case, docketed as Criminal Case No. 96-112-D-MK, for violation of Sec. 15 (Sale, Administration, Dispensation, Delivery, Transportation and Distribution of Regulated Drugs), Art. III of the same law, was later lodged in the same branch of the court.
The two separate Informations filed against the petitioner respectively read as follows:
To buttress its case against the petitioner, the prosecution presented the testimonies of Police Inspector Julita T. De Villa, SPO2 Melanio Valeroso and SPO2 Vicente Ostan.
The People's version of the incident, as summarized by the CA in the decision now on appeal, is as follows:
The CA decision likewise summarizes the defense' account of the incident, to wit:
As stated at the threshold hereof, the CA, in the herein assailed Decision[5] dated October 22, 1999, affirmed that of the trial court:
It is settled that in cases involving violations of the Dangerous Drugs Act, credence should be given to the narration of the incident by the prosecution witnesses especially when they are police officers who are presumed to have performed their duties in a regular manner, unless there be evidence to the contrary. Moreover, in the absence of proof of motive to falsely impute such a serious crime against the petitioner, the presumption of regularity in the performance of official duty, as well as the findings of the trial court on the credibility of witnesses, shall prevail over petitioner's self-serving and uncorroborated claim of having been framed.[6]
Here, we found nothing in the record to justify why we should depart from the above rule as far as the testimonies of prosecution witnesses SPO2 Melanio Valeroso and SPO2 Vicente Ostan are concerned. As correctly noted by the trial court, there is no evidence of any improper motive on the part of the police officers who conducted the entrapment operation in this case.
The prosecution's evidence established that an honest-to-goodness entrapment operation which has repeatedly been accepted to be a valid means of arresting violators of the Dangerous Drugs Law was conducted on August 10, 1995 against Dimacuha by the team composed of SPO2 Melanio Valeroso, SPO2 Vicente Ostan, Bello Borgueta, Jose Castelo, Jr. and Felipe Evangelista. SPO2 Valeroso and SPO2 Ostan positively testified that from a distance of more or less 5 to 7 meters, they saw petitioner took out from her brown shoulder bag one (1) small plastic sachet, suspected to be "shabu," and handed the same to their police informant, Benito Marcelo. Immediately thereafter, the two police officers approached the petitioner, the latter's lady companion and Marcelo. SPO2 Valeroso confiscated the said small plastic sachet, containing a white crystalline substance from Marcelo. A subsequent search on the petitioner's shoulder bag yielded another small plastic sachet, also suspected to contain shabu, which was inserted inside the cover of petitioner's checkbook. After laboratory examination, the white crystalline substance contained in the small plastic sachets was found positive of methamphetamine hydrochloride, commonly known as shabu, a regulated drug.
Petitioner now questions the credibility of the prosecution witnesses and their testimonies by giving stress over the non-presentation in court of Benito Marcelo, the professed police asset. She argues that the non-presentation of Marcelo was a denial of her constitutional right to meet and confront her accuser.
The right of the petitioner to confront the witnesses against her is not affected by the failure of the prosecution to present the informant. The matter of presentation of witnesses is not for accused nor even for the trial court to decide. Discretion belongs to the prosecutor as to how the State should present its case. The prosecutor has the right to choose whom he would present as witnesses. Moreover, in illegal drugs cases, the presentation of an informant is not essential for conviction nor is it indispensable for a successful prosecution because his testimony would be merely corroborative and cumulative. Informants are usually not presented in court because of the need to hide their identity and preserve their invaluable service to the police. It is well-settled that except when the accused vehemently denies selling prohibited drugs and there are material inconsistencies in the testimonies of the arresting officers, or there are reasons to believe that the arresting officers had motives to falsely testify against the accused, or that only the informant was the poseur-buyer who actually witnessed the entire transaction, the testimony of the informant may be dispensed with as it will merely be corroborative of the apprehending officers' eyewitness accounts.[7]
Here, SPO2 Valeroso and SPO2 Ostan directly testified regarding the entrapment operation, as they witnessed the whole transaction of petitioner's handing over the 1.15 grams of shabu to their asset, and, immediately thereafter, seized from her another 10.78 grams of shabu which was placed inside her shoulder bag. The non-presentation, therefore, of the informant would not create a hiatus in the prosecution's evidence since his testimony would merely have been corroborative. The physical evidence on record, which is Chemistry Report No. D-578-95, also corroborates the collective testimonies of the prosecution witnesses.[8] Upon laboratory examination, the white crystalline substance found in appellant's possession was positively identified as methamphetamine hydrochloride or shabu, a regulated drug.
As stated earlier, the testimony of the police officers carried with it the presumption of regularity in the performance of official function. Absent any persuasive evidence showing why these officers would falsely testify against the petitioner, the logical conclusion is that no improper motive exists, and that their testimonies are worthy of full faith and credit.[9]
Finally, petitioner contends that the arrest and the search conducted incidental to her arrest were illegal as the surrounding circumstances of the arrest were not within the purview of the allowable warrantless arrests under Rule 113, Section 5 of the Rules of Court.
The Constitution enshrines in the Bill of Rights the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose.[10] To give full protection to it, the Bill of Rights also ordains the exclusionary principle that any evidence obtained in violation of said right is inadmissible for any purpose in any proceeding.[11]
In People v. Chua Ho San,[12] we pointed out that the interdiction against warrantless searches and seizures is not absolute and that warrantless searches and seizures have long been deemed permissible by jurisprudence in the following instances: (1) search of moving vehicles; (2) seizure in plain view; (3) customs searches; (4) waiver or consented searches; (5) stop and frisk situations (Terry search); and (6) search incidental to a lawful arrest. The last includes a valid warrantless search and seizure pursuant to an equally warrantless arrest, for, while as a rule, an arrest is considered legitimate if effected with a valid warrant of arrest, the Rules of Court recognizes permissible warrantless arrest, to wit: (1) arrest in flagrante delicto; (2) arrest effected in hot pursuit; and (3) arrest of escaped prisoners.
Here, the petitioner was caught in flagrante delicto while in the act of delivering 1.15 grams and in actual possession of another 10.78 grams of methamphetamine hydrochloride (shabu) as a result of an entrapment operation conducted by the police on the basis of information received from Benito Marcelo regarding petitioner's illegal drug trade. Petitioner's arrest, therefore, was lawful and the subsequent seizure of a bag of shabu inserted inside the cover of her checkbook was justified and legal in light of the prevailing rule that an officer making an arrest may take from the person arrested any property found upon his person in order to find and seize things connected with the crime. The seized regulated drug is, therefore, admissible in evidence, being the fruit of the crime.
Petitioner next argues that no entrapment (buy-bust) operation ever took place as no payment was made. This is of no moment. In the crime of distribution of prohibited drugs, the payment of any consideration is immaterial. The mere act of distributing the prohibited drug to others is in itself a punishable offense.[13] In Criminal Case No. 96-112-D-MK, petitioner was charged under Section 15, Article III of RA No. 6425 for the distribution of regulated drugs. The law defines the word "deliver" as a person's act of knowingly passing a dangerous drug to another personally or otherwise, and by any manner with or without consideration.[14]
At the trial court, petitioner invoked the defense of alibi. She claimed that Juvy Carpio and Michael Mallari were already at Mang Rudy's residence when she arrived, and while talking with Carpio, two men in civilian clothes appeared and asked for Michael Mallari. When Mallari identified himself, the two men asked for his belt bag. While the three men scuffled for the bag, she followed them and later on was asked to go to the police station for some questioning.
The defense set up by the petitioner does not deserve any consideration. She should have presented her friends, Juvy Carpio and Michael Mallari, to collaborate her tale, but she did not, for reasons known only to her. The consistent ruling of this Court is that alibi is the weakest of all defenses and the easiest to concoct. So it is that in drug cases, the Court views alibi with disfavor. For alibi to prosper, the accused has the burden of proving that he was not at the scene of the crime at the time of its commission and that it was physically impossible for him to be there. Here, no clear and convincing evidence was presented by petitioner to prove her defense of alibi. On the contrary, were she not at the house of Mang Rudy at the time of the entrapment, she would not have been arrested and her bag searched.
The Court has no doubt at all that the charge for delivery or distribution of 1.15 grams of methamphetamine hydrochloride (shabu) in Criminal Case No. 96-112-D-MK, and possession of 10.78 grams in addition to the 1.15 grams of shabu in Criminal Case No. 95-63-D-MK, were proved beyond reasonable doubt.
We found the penalty imposed by the trial court as affirmed by the CA to be correct. Although the Congress later enacted an amendatory law, R.A. No. 9165,[15] which increased the penalty for illegal possession of 10 grams or more but less than 50 grams of methamphetamine hydrochloride to life imprisonment and a fine ranging from four hundred thousand pesos (P400,000.00) to five hundred thousand pesos (P500,000.00),[16] and for the sale/delivery of dangerous drugs from life imprisonment to death and a fine ranging from five hundred thousand (P500,000.00) to ten million pesos (P10,000,000.00) regardless of the quantity and purity involved,[17] the said law is not favorable to the petitioner, hence, it cannot be given retroactive application in the instant case.
In People v. Tira,[18] we held:
Petitioner in this case was caught in the act of delivering 1.15 grams of shabu plus the 10.78 grams found in her possession. Thus, the proper penalty should be no more than prision correccional. There being neither generic mitigating nor aggravating circumstance, the penalty of prision correccional shall be imposed in its medium period which has a duration of 2 years, 4 months and 1 day to 4 years and 2 months. And applying the Indeterminate Sentence Law, the minimum period shall be within the range of the penalty next lower in degree which is arresto mayor, the duration of which is 1 month and 1 day to 6 months. Hence, petitioner was correctly sentenced to 6 months of arresto mayor, as minimum, to 2 years, 4 months and 1 day of prision correccional in its medium period, as maximum.
IN VIEW WHEREOF, the instant petition is DENIED and the assailed CA decision and resolution are AFFIRMED.
Costs against the petitioner.
SO ORDERED.
Puno, C.J., (Chairperson), Sandoval-Gutierrez, and Corona, JJ., concur.
Azcuna, J., on official leave.
[1] Penned by Associate Justice Buenaventura J. Guerrero and concurred in by Associate Justices Portia Aliño-Hormachuelos and Remedios A. Salazar-Fernando; Rollo, pp. 46-59.
[2] Sec. 15. Sale, Administration, Dispensation, Delivery, Transportation and Distribution of Regulated 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, dispense, deliver, transport or distribute any regulated drug. x x x
[3] Sec. 16. Possession or Use of Regulated 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 shall possess or use any regulated drug without the corresponding license or prescription, subject to the provisions of Section 20 hereof.
[4] Id. at 61.
[5] Supra note 1.
[6] People v. Chua Uy, 384 Phil. 70 (2000).
[7] People v. Doria, G.R. No. 125299, January 22, 1999, 301 SCRA 668, citing People v. Ale, 229 Phil. 81 (1986); People v. Sillo, G.R. No. 91001, September 18, 1992, 214 SCRA 74; People v. Sahagun, G.R. No. 62024, February 12, 1990, 182 SCRA 91; People v. Lucero, G.R. No. 84656, January 4, 1994, 229 SCRA1; People v. Solon, G.R. No. 106639, May 31, 1995, 244 SCRA 554.
[8] RTC Record (CR No. 95-63-D-MK), p. 6.
[9] People v. Corpuz, G.R. No. 148919, December 17, 20002, 442 SCRA 405.
[10] Constitution, Article III, Section 2.
[11] Constitution, Article III, Section 3, par. 2.
[12] G.R. No. 128222, June 17, 1999, 308 SCRA 432.
[13] People v. Rodriguez, 429 Phil. 359 (2002).
[14] Section 2(f), Article 1 of RA No. 6425.
[15] An Act Instituting the Comprehensive Dangerous Drugs Act of 2002, Repealing Republic Act No. 6425, Otherwise Known as the Dangerous Drugs Act of 1972, As Amended, Providing Funds Therefor, and For Other Purposes.
[16] Sec. 11. Possession of Dangerous Drugs. x x x
[17] 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.
[18] G.R. No. 139615, May 28, 2004, 430 SCRA 134.
[19] G.R. No. 133006, June 9, 2004, 431 SCRA 439.
Criminal Case No. 95-63-D-MK of the court of origin traces its formal beginning from an Information charging petitioner of the crime of violation of Sec. 16 (Possession or Use of Regulated Drugs), Art. III of RA No. 6425, as amended. A companion case, docketed as Criminal Case No. 96-112-D-MK, for violation of Sec. 15 (Sale, Administration, Dispensation, Delivery, Transportation and Distribution of Regulated Drugs), Art. III of the same law, was later lodged in the same branch of the court.
The two separate Informations filed against the petitioner respectively read as follows:
Arraigned on separate dates, petitioner, assisted by counsel, entered a plea of "Not Guilty" in both cases. Thereafter, by agreement of the parties, the two cases were tried jointly.Crim. Case No. 95-63-D-MK
(For Possession or Use of Regulated Drugs)
That on or about the 10th day of August 1995, in the Municipality of Marikina, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law, did then and there willfully, unlawfully and feloniously have in his possession, direct custody and control 10.78 and 1.15 grams of methamphetamine hydrochloride, a regulated drug, in violation of the above-cited law, as amended.
Contrary to law.
Crim. Case No. 96-112-D-MK
(For Sale, Administration, Dispensation, Delivery,
Transportation and Distribution of Regulated Drugs)
That on or about the 10th day of August, 1995, in the Municipality of Marikina, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law, did then and there willfully, unlawfully and feloniously deliver 1.15 gram of methamphetamine hydrochloride, a regulated drug to another person, in violation of the above-cited law, as amended.
Contrary to law.
To buttress its case against the petitioner, the prosecution presented the testimonies of Police Inspector Julita T. De Villa, SPO2 Melanio Valeroso and SPO2 Vicente Ostan.
The People's version of the incident, as summarized by the CA in the decision now on appeal, is as follows:
The prosecution's evidence tend to show that at around 9:30 a.m. on 10 August 1995, SPO2 Melanio Valeroso (SPO2 Valeroso, for brevity), Senior Inspector Ely Pintang, SPO2 Ostan, and Edilberto Ogto were at the office of the Intelligence Unit of the Marikina Police Station, Metro Manila. While there, an informant or confidential informer or asset named Benito Marcelo arrived. He relayed to the policemen about a sale of illegal drugs to be done between 11:00 a.m. to 12:00 noon of the same day along the corner to J.M. Basa and Kapwa Streets, Calumpang, Marikina, Metro Manila. He likewise described the seller as "more or less 5'4" in height, has a long hair and she will be using a (sky blue colored) car (Toyota Corolla with Plate No. PPZ-254) in delivering the shabu." At once, Senior Inspector Ely Pintang formulated a plan to conduct the operation of arresting the suspected seller. A team composed of SPO2 Valeroso, SPO2 Vicente Ostan, Bello Borgueta, Jose Castelo, Jr., and Felipe Evangelista was formed. Then, the team dispatched to the said place.
At about 11:00 a.m. of that day, SPO2 Valeroso and SPO2 Vicente Ostan (SPO2 Ostan, for brevity) positioned themselves along J.M. Basa Street, while the other members were at Kapwa Street, Calumpang, Marikina. SPO2 Valeroso and SPO2 Ostan were fronting a house which was more or less 5 to 7 meters away from where they were. The house allegedly owned by a certain alias Rudy Kalawang was where the sale of the illegal drugs was to take place. SPO2 Valeroso saw Benito Marcelo, the confidential informer, walking to and from that house.For its part, the defense offered in evidence the testimonies of the petitioner herself and her witnesses, namely, Rodolfo Enutallo and Jose Antonio Boo.
More or less thirty minutes later, two vehicles (a colored blue Toyota car with plate number PPZ-254 and a semi-stainless jeep with plate number DJK-840) parked near the said house. In the car, there were the occupants (a female driver, a female companion, and a male companion) while in the jeep there were two (a male driver and a male companion). Moments later, the female driver of the car, which matched the description of the seller given by Benito Marcelo, alighted. She approached the driver of the other vehicle. After a few minutes of transaction, the jeep left. Thereafter, the female driver and her female companion went to the gate of the house while their male companion stayed at the car. At the said gate, Benito Marcelo, the confidential informer, met the female driver and her female companion. The female driver took out from her shoulder bag "one small plastic bag x x x" and gave it to Benito Marcelo. Immediately, SPO2 Valeroso and SPO2 Ostan approached the female driver, her female companion and Benito Marcelo. Aside from the small plastic bag that was handed to Benito Marcelo, SPO2 Valeroso also recovered "suspected shabu inside the shoulder bag" of the female driver "inserted inside the cover of a check booklet." Then, they were brought to the headquarters. The female driver was Ruby Dimacuja; her female companion was Juvy Carpio and their male companion was Michael Mallari. SPO2 Valeroso then marked the two transparent plastic bags recovered from Ruby Dimacuja by affixing his initials, placing the date and writing Ruby Dimacuja's name. A joint affidavit was executed.
Complying with the letter request dated 10 August 1995 of the Chief of the Investigation Unit of the Marikina Police Station, Forensic Chemist Julita T. De Villa came up with the following:
"SPECIMEN SUBMITTED:PURPOSE OF LABORATORY EXAMINATION:
Exh. "A" -- One (1) heat sealed transparent plastic bag with 10.78 grams of white crystalline substance.
Exh. "B" -- One (1) transparent plastic bag containing 1.15 grams of white crystalline substance allegedly delivered by R. Dimacuja.
x x x x x x x x x
To determine the presence of prohibited and/or regulated drug.
FINDINGS:
Qualitative examination conducted on the above stated specimen gave POSITIVE result to the test for methamphetamine hydrochloride a regulated drugs."
The CA decision likewise summarizes the defense' account of the incident, to wit:
On the other hand, the defense's evidence tend to show that at around 10:00 a.m. on 10 October [should be August] 1995, Ruby Dimacuja (Ms. Dimacuja, for brevity) received a message in her beeper. It came from a certain Egay telling Ms. Dimacuja that Juvy Carpio and Michael Mallari were in the house of a certain Rodolfo Caluang whose correct name is Rodolfo Enutallio (Mang Rudy) in Basa St., corner Kapwa St., Calumpang, Marikina, Metro Manila. Immediately, Ms. Dimacuja proceeded there alone.After due assessment of the evidence presented, the trial court gave full faith and credit to the testimonies of the prosecution witnesses and upheld the presumption applied in cases involving violation of Dangerous Drug Acts of regularity in the performance of duty by public officers conducting anti-narcotics operations when the police officers have no motive in testifying falsely against an accused. It found that the evidence for the prosecution convincingly established petitioner's guilt beyond reasonable doubt, and accordingly sentenced her thus:
Upon reaching the two-storey house of Mang Rudy, Ms. Dimacuja went at the second floor. On her way up, she saw Benito Marcelo whom she had known since June 1995 talking with Mang Rudy at the first floor. At the second floor, she saw Juvy Carpio and Michael Mallari. Ms. Dimacuja asked Juvy Carpio about the latter's indebtedness of P24,000.00 to her. As Ms. Dimacuja was collecting the said amount, two men in civilian clothes appeared at the second floor and were looking for Michael Mallari. Upon seeing them, Mallari asked them what the problem was. The two men responded, they wanted to see his belt bag. A scuffle for the belt bag ensued. While that was happening, Ms. Dimacuja continued talking with Juvy Carpio about the debt. Moments later, the three men went down, still grappling for the possession of the said bag. Sensing that what was happening among the men was just a scheme of Juvy Carpio to avoid paying the debt, Ms. Dimacuja followed them at the first floor. There, the two men who barged in at the second floor asked Ms. Dimacuja to go with them at the Marikina Police Station to explain her presence in the house. Hesitantly, Ms. Dimacuja acceded. Using her car, they (Ms. Dimacuja, Juvy Carpio, Michael Mallari, and three other men, as there were six of them) rode together. In the car, Ms. Dimacuja noticed the presence of Valeroso, a friend of her mother, who arrived after the scuffling incident.
At the police station, Ms. Dimacuja's shoulder bag was inspected. Found inside were the "telephone book, perfume, check book and cash money (of) less than P2,000.00." She was told that the contents were to be used as "part of the evidence." She disclaimed carrying the drugs. Thereupon, she was detained for two days and two nights, the contents of her bag remain unreturned and her car was not released from police custody until after one month.
WHEREFORE, judgment is hereby rendered as follows:
1.) In Criminal Case No. 95-63-D-MK - the Court finds accused Ruby Dimacuja y Ebreo guilty beyond reasonable doubt of Violation of Section 16, Article III of Republic Act No. 6425, as amended, and considering that the quantity of the shabu is only 10.78 and 1.15 grams, and there being no mitigating nor aggravating circumstances, applying the Indeterminate Sentence Law in consonance with People vs. Simon, 234 SCRA 572-573, and People vs. Martinez, 235 SCRA 183, the accused is sentenced to suffer imprisonment from SIX (6) MONTHS of arresto mayor, as minimum, to TWO (2) YEARS and FOUR (4) MONTHS of prision correccional, as maximum, and to pay the costs;Unable to accept the trial court's judgment of conviction, petitioner went on appeal to the CA in CA-G.R. CR No. 20720.
2.) In Criminal Case No. 96-112-D-MK - the Court finds accused Ruby Dimacuja guilty beyond reasonable doubt of Violation of Section 15, Article III of Republic Act No. 6425, as amended, and considering that the quantity of the shabu is only 1.15 gram, and there being no mitigating nor aggravating circumstances, applying the Indeterminate Sentence Law in consonance with People vs. Simon, 234 SCRA 572-573, and People vs. Martinez, 235 SCRA 183, the accused is sentenced to suffer imprisonment from SIX (6) MONTHS of arresto mayor, as minimum, to TWO (2) YEARS and FOUR (4) MONTHS of prision correccional, as maximum, and to pay the costs.
The confiscated shabu are hereby declared forfeited in favor of the government and shall be disposed of in accordance with law.
SO ORDERED.
As stated at the threshold hereof, the CA, in the herein assailed Decision[5] dated October 22, 1999, affirmed that of the trial court:
Premises considered, the prosecution has proved appellant's guilt beyond reasonable doubt for violations of Sections 15 (Sale, Delivery, etc.,) and 16 (Possession), Article III, R.A. 6425, as amended. The penalties were properly meted by the court a quo.Undaunted, petitioner is now with this Court via the present recourse thereunder raising the following issues:
WHEREFORE, the assailed decision being in conformity with the law and evidence, the same is hereby AFFIRMED in toto.
SO ORDERED.
These issues raised can actually be trimmed down to only two: the credibility of the prosecution witnesses and their testimonies; and, the validity of the arrest and search conducted on the person and belongings of the petitioner without a warrant.
- Whether the CA, in holding that petitioner did not approach SPO2 Melanio Valeroso to profess her innocence, committed a reversible error by affirming in toto the questioned decision of the court a quo;
- Whether the CA committed a reversible error when it affirmed the conviction of petitioner in Criminal Case No. 96-112-D-MK for violation of Section 15 (Sale, Administration, Dispensation, Delivery, Etc.), Art. III, of R.A. 6425, as amended, when it was the investigating prosecutor's view that there was not even any probable cause to hold petitioner liable therefor without the testimony of the professed police asset;
- Whether the non-presentation of one Benito Marcelo, the professed police asset, was a denial of petitioner's right to confront her accuser;
- Whether the warrantless arrest of petitioner was justified under Section 5, Rule 113 of the Rules of Court;
- Whether the alleged pieces of prohibited stuff presented in Criminal Case No. 95-63-D-MK for violation of Section 16 (Possession or Use of Regulated Drugs), Article III of R.A. 6425, allegedly obtained as an incident to a warrantless arrest, are admissible in evidence;
- Whether the CA committed a reversible error when it failed to adopt and apply the equipoise rule in the instant cases.
It is settled that in cases involving violations of the Dangerous Drugs Act, credence should be given to the narration of the incident by the prosecution witnesses especially when they are police officers who are presumed to have performed their duties in a regular manner, unless there be evidence to the contrary. Moreover, in the absence of proof of motive to falsely impute such a serious crime against the petitioner, the presumption of regularity in the performance of official duty, as well as the findings of the trial court on the credibility of witnesses, shall prevail over petitioner's self-serving and uncorroborated claim of having been framed.[6]
Here, we found nothing in the record to justify why we should depart from the above rule as far as the testimonies of prosecution witnesses SPO2 Melanio Valeroso and SPO2 Vicente Ostan are concerned. As correctly noted by the trial court, there is no evidence of any improper motive on the part of the police officers who conducted the entrapment operation in this case.
The prosecution's evidence established that an honest-to-goodness entrapment operation which has repeatedly been accepted to be a valid means of arresting violators of the Dangerous Drugs Law was conducted on August 10, 1995 against Dimacuha by the team composed of SPO2 Melanio Valeroso, SPO2 Vicente Ostan, Bello Borgueta, Jose Castelo, Jr. and Felipe Evangelista. SPO2 Valeroso and SPO2 Ostan positively testified that from a distance of more or less 5 to 7 meters, they saw petitioner took out from her brown shoulder bag one (1) small plastic sachet, suspected to be "shabu," and handed the same to their police informant, Benito Marcelo. Immediately thereafter, the two police officers approached the petitioner, the latter's lady companion and Marcelo. SPO2 Valeroso confiscated the said small plastic sachet, containing a white crystalline substance from Marcelo. A subsequent search on the petitioner's shoulder bag yielded another small plastic sachet, also suspected to contain shabu, which was inserted inside the cover of petitioner's checkbook. After laboratory examination, the white crystalline substance contained in the small plastic sachets was found positive of methamphetamine hydrochloride, commonly known as shabu, a regulated drug.
Petitioner now questions the credibility of the prosecution witnesses and their testimonies by giving stress over the non-presentation in court of Benito Marcelo, the professed police asset. She argues that the non-presentation of Marcelo was a denial of her constitutional right to meet and confront her accuser.
The right of the petitioner to confront the witnesses against her is not affected by the failure of the prosecution to present the informant. The matter of presentation of witnesses is not for accused nor even for the trial court to decide. Discretion belongs to the prosecutor as to how the State should present its case. The prosecutor has the right to choose whom he would present as witnesses. Moreover, in illegal drugs cases, the presentation of an informant is not essential for conviction nor is it indispensable for a successful prosecution because his testimony would be merely corroborative and cumulative. Informants are usually not presented in court because of the need to hide their identity and preserve their invaluable service to the police. It is well-settled that except when the accused vehemently denies selling prohibited drugs and there are material inconsistencies in the testimonies of the arresting officers, or there are reasons to believe that the arresting officers had motives to falsely testify against the accused, or that only the informant was the poseur-buyer who actually witnessed the entire transaction, the testimony of the informant may be dispensed with as it will merely be corroborative of the apprehending officers' eyewitness accounts.[7]
Here, SPO2 Valeroso and SPO2 Ostan directly testified regarding the entrapment operation, as they witnessed the whole transaction of petitioner's handing over the 1.15 grams of shabu to their asset, and, immediately thereafter, seized from her another 10.78 grams of shabu which was placed inside her shoulder bag. The non-presentation, therefore, of the informant would not create a hiatus in the prosecution's evidence since his testimony would merely have been corroborative. The physical evidence on record, which is Chemistry Report No. D-578-95, also corroborates the collective testimonies of the prosecution witnesses.[8] Upon laboratory examination, the white crystalline substance found in appellant's possession was positively identified as methamphetamine hydrochloride or shabu, a regulated drug.
As stated earlier, the testimony of the police officers carried with it the presumption of regularity in the performance of official function. Absent any persuasive evidence showing why these officers would falsely testify against the petitioner, the logical conclusion is that no improper motive exists, and that their testimonies are worthy of full faith and credit.[9]
Finally, petitioner contends that the arrest and the search conducted incidental to her arrest were illegal as the surrounding circumstances of the arrest were not within the purview of the allowable warrantless arrests under Rule 113, Section 5 of the Rules of Court.
The Constitution enshrines in the Bill of Rights the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose.[10] To give full protection to it, the Bill of Rights also ordains the exclusionary principle that any evidence obtained in violation of said right is inadmissible for any purpose in any proceeding.[11]
In People v. Chua Ho San,[12] we pointed out that the interdiction against warrantless searches and seizures is not absolute and that warrantless searches and seizures have long been deemed permissible by jurisprudence in the following instances: (1) search of moving vehicles; (2) seizure in plain view; (3) customs searches; (4) waiver or consented searches; (5) stop and frisk situations (Terry search); and (6) search incidental to a lawful arrest. The last includes a valid warrantless search and seizure pursuant to an equally warrantless arrest, for, while as a rule, an arrest is considered legitimate if effected with a valid warrant of arrest, the Rules of Court recognizes permissible warrantless arrest, to wit: (1) arrest in flagrante delicto; (2) arrest effected in hot pursuit; and (3) arrest of escaped prisoners.
Here, the petitioner was caught in flagrante delicto while in the act of delivering 1.15 grams and in actual possession of another 10.78 grams of methamphetamine hydrochloride (shabu) as a result of an entrapment operation conducted by the police on the basis of information received from Benito Marcelo regarding petitioner's illegal drug trade. Petitioner's arrest, therefore, was lawful and the subsequent seizure of a bag of shabu inserted inside the cover of her checkbook was justified and legal in light of the prevailing rule that an officer making an arrest may take from the person arrested any property found upon his person in order to find and seize things connected with the crime. The seized regulated drug is, therefore, admissible in evidence, being the fruit of the crime.
Petitioner next argues that no entrapment (buy-bust) operation ever took place as no payment was made. This is of no moment. In the crime of distribution of prohibited drugs, the payment of any consideration is immaterial. The mere act of distributing the prohibited drug to others is in itself a punishable offense.[13] In Criminal Case No. 96-112-D-MK, petitioner was charged under Section 15, Article III of RA No. 6425 for the distribution of regulated drugs. The law defines the word "deliver" as a person's act of knowingly passing a dangerous drug to another personally or otherwise, and by any manner with or without consideration.[14]
At the trial court, petitioner invoked the defense of alibi. She claimed that Juvy Carpio and Michael Mallari were already at Mang Rudy's residence when she arrived, and while talking with Carpio, two men in civilian clothes appeared and asked for Michael Mallari. When Mallari identified himself, the two men asked for his belt bag. While the three men scuffled for the bag, she followed them and later on was asked to go to the police station for some questioning.
The defense set up by the petitioner does not deserve any consideration. She should have presented her friends, Juvy Carpio and Michael Mallari, to collaborate her tale, but she did not, for reasons known only to her. The consistent ruling of this Court is that alibi is the weakest of all defenses and the easiest to concoct. So it is that in drug cases, the Court views alibi with disfavor. For alibi to prosper, the accused has the burden of proving that he was not at the scene of the crime at the time of its commission and that it was physically impossible for him to be there. Here, no clear and convincing evidence was presented by petitioner to prove her defense of alibi. On the contrary, were she not at the house of Mang Rudy at the time of the entrapment, she would not have been arrested and her bag searched.
The Court has no doubt at all that the charge for delivery or distribution of 1.15 grams of methamphetamine hydrochloride (shabu) in Criminal Case No. 96-112-D-MK, and possession of 10.78 grams in addition to the 1.15 grams of shabu in Criminal Case No. 95-63-D-MK, were proved beyond reasonable doubt.
We found the penalty imposed by the trial court as affirmed by the CA to be correct. Although the Congress later enacted an amendatory law, R.A. No. 9165,[15] which increased the penalty for illegal possession of 10 grams or more but less than 50 grams of methamphetamine hydrochloride to life imprisonment and a fine ranging from four hundred thousand pesos (P400,000.00) to five hundred thousand pesos (P500,000.00),[16] and for the sale/delivery of dangerous drugs from life imprisonment to death and a fine ranging from five hundred thousand (P500,000.00) to ten million pesos (P10,000,000.00) regardless of the quantity and purity involved,[17] the said law is not favorable to the petitioner, hence, it cannot be given retroactive application in the instant case.
In People v. Tira,[18] we held:
Under Section 16 [Possession or Used of Regulated Drugs], Article III of Rep. Act No. 6425, as amended, the imposable penalty of possession of a regulated drug, less than 200 grams, in this case, shabu, is prision correccional to reclusion perpetua. Based on the quantity of the regulated drug subject of the offense, the imposable penalty shall be as follows:The same ruling was applied in People v. Isnani[19] where the petitioner therein was found guilty for the crime of illegal sale of 0.60 gram of shabu.
QUANTITY IMPOSABLE PENALTY Less than one (1) gram to 49.25 grams prision correccional 49.26 grams to 98.50 grams prision mayor 98.51 grams to 147.75 grams reclusion temporal 147.76 grams to 199 grams reclusion perpetua
Petitioner in this case was caught in the act of delivering 1.15 grams of shabu plus the 10.78 grams found in her possession. Thus, the proper penalty should be no more than prision correccional. There being neither generic mitigating nor aggravating circumstance, the penalty of prision correccional shall be imposed in its medium period which has a duration of 2 years, 4 months and 1 day to 4 years and 2 months. And applying the Indeterminate Sentence Law, the minimum period shall be within the range of the penalty next lower in degree which is arresto mayor, the duration of which is 1 month and 1 day to 6 months. Hence, petitioner was correctly sentenced to 6 months of arresto mayor, as minimum, to 2 years, 4 months and 1 day of prision correccional in its medium period, as maximum.
IN VIEW WHEREOF, the instant petition is DENIED and the assailed CA decision and resolution are AFFIRMED.
Costs against the petitioner.
SO ORDERED.
Puno, C.J., (Chairperson), Sandoval-Gutierrez, and Corona, JJ., concur.
Azcuna, J., on official leave.
[1] Penned by Associate Justice Buenaventura J. Guerrero and concurred in by Associate Justices Portia Aliño-Hormachuelos and Remedios A. Salazar-Fernando; Rollo, pp. 46-59.
[2] Sec. 15. Sale, Administration, Dispensation, Delivery, Transportation and Distribution of Regulated 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, dispense, deliver, transport or distribute any regulated drug. x x x
[3] Sec. 16. Possession or Use of Regulated 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 shall possess or use any regulated drug without the corresponding license or prescription, subject to the provisions of Section 20 hereof.
[4] Id. at 61.
[5] Supra note 1.
[6] People v. Chua Uy, 384 Phil. 70 (2000).
[7] People v. Doria, G.R. No. 125299, January 22, 1999, 301 SCRA 668, citing People v. Ale, 229 Phil. 81 (1986); People v. Sillo, G.R. No. 91001, September 18, 1992, 214 SCRA 74; People v. Sahagun, G.R. No. 62024, February 12, 1990, 182 SCRA 91; People v. Lucero, G.R. No. 84656, January 4, 1994, 229 SCRA1; People v. Solon, G.R. No. 106639, May 31, 1995, 244 SCRA 554.
[8] RTC Record (CR No. 95-63-D-MK), p. 6.
[9] People v. Corpuz, G.R. No. 148919, December 17, 20002, 442 SCRA 405.
[10] Constitution, Article III, Section 2.
Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.
[11] Constitution, Article III, Section 3, par. 2.
Sec. 3 (1). xxx xxx xxx
(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.
(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.
[12] G.R. No. 128222, June 17, 1999, 308 SCRA 432.
[13] People v. Rodriguez, 429 Phil. 359 (2002).
[14] Section 2(f), Article 1 of RA No. 6425.
[15] An Act Instituting the Comprehensive Dangerous Drugs Act of 2002, Repealing Republic Act No. 6425, Otherwise Known as the Dangerous Drugs Act of 1972, As Amended, Providing Funds Therefor, and For Other Purposes.
[16] Sec. 11. Possession of Dangerous Drugs. x x x
x x x x x x x x x
(1) Life imprisonment and a fine ranging from Four hundred thousand pesos (P400,000.00) to Five hundred thousand pesos (P500,000.00), if the quantity of methamphetamine hydrochloride or "shabu" is ten (10) grams or more but less than fifty (50) grams;
(1) Life imprisonment and a fine ranging from Four hundred thousand pesos (P400,000.00) to Five hundred thousand pesos (P500,000.00), if the quantity of methamphetamine hydrochloride or "shabu" is ten (10) grams or more but less than fifty (50) grams;
[17] 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.
[18] G.R. No. 139615, May 28, 2004, 430 SCRA 134.
[19] G.R. No. 133006, June 9, 2004, 431 SCRA 439.