16. G.R. No.

179940, April 23, 2008

  
Assailed before Us is the Decision[1] of the Court of Appeals in CA-G.R.
CR-H.C. No. 02070 dated 28 May 2007 which affirmed with modification the
Decision[2] of the Regional Trial Court (RTC) of Malolos, Bulacan, Branch 78, in
Criminal Case No. 3437-M-02, finding accused-appellant Norberto del
Monte, a.k.a. Obet, guilty of violation of Section 5, [3] Article II of Republic Act
No. 9165, otherwise known as Comprehensive Dangerous Drugs Act of 2002.
 
On 11 December 2002, accused-appellant was charged with Violation of
Section 5, Article II of Republic Act No. 9165, otherwise known as
Comprehensive Dangerous Drugs Act of 2002.The accusatory portion of the
information reads:
 
That on or about the 10 th day of December 2002, in the
municipality of Baliuag, province of Bulacan, Philippines, and
within the jurisdiction of this Honorable Court, the above-named
accused, without authority of law and legal justification, did then
and there wilfully, unlawfully and feloniously sell, trade, deliver,
give away, dispatch in transit and transport dangerous drug
consisting of one (1) heat-sealed transparent plastic sachet of
Methylamphetamine Hydrochloride weighing 0.290 gram.[4]
 
 
The case was raffled to Branch 78 of the RTC of Malolos, Bulacan and
docketed as Criminal Case No. 3437-M-02.
 
When arraigned on 20 January 2003, appellant, assisted by counsel de
oficio, pleaded Not Guilty to the charge.[5] On 17 February 2003, the pre-trial
conference was concluded.[6] Thereafter, trial on the merits ensued.
 
The prosecution presented as its lone witness PO1 Gaudencio M.
Tolentino, Jr., the poseur-buyer in the buy-bust operation conducted against
appellant, and a member of the Philippine National Police (PNP) assigned with
the Philippine Drug Enforcement Agency (PDEA) Regional Office 3/Special
Enforcement Unit (SEU) stationed at the Field Office, Barangay Tarcan,
Baliuag, Bulacan.
 
The version of the prosecution is as follows:
 
On 10 December 2002, at around 3:00 oclock in the afternoon, a
confidential informant went to the office of the PDEA SEU in Barangay Tarcan,
Baliuag, Bulacan and reported that appellant was selling shabu. Upon receipt
of said information, a briefing on a buy-bust operation against appellant was
conducted. The team was composed of SPO2 Hashim S. Maung, as team
leader, PO1 Gaudencio Tolentino, Jr. as the poseur-buyer, and PO1 Antonio
Barreras as back-up operative. After the briefing, the team, together with the
confidential informant, proceeded to Poblacion Dike for the execution of the
buy-bust operation.
 
When the team arrived at appellants place, they saw the appellant
standing alone in front of the gate. The informant and PO1 Tolentino
approached appellant. The informant introduced PO1 Tolentino to appellant as
his friend, saying Barkada ko, user. PO1 Tolentino gave appellant P300.00
consisting of three marked P100 bills.[7] The bills were marked with GT JR, PO1
Tolentinos initials. Upon receiving the P300.00, appellant took out a plastic
sachet from his pocket and handed it over to PO1 Tolentino. As a pre-arranged
signal, PO1 Tolentino lit a cigarette signifying that the sale had been
consummated. PO1 Barreras arrived, arrested appellant and recovered from
the latter the marked money.
 
The white crystalline substance[8] in the plastic sachet which was sold to
PO1 Tolentino was forwarded to PNP Regional Crime Laboratory Office 3,
Malolos, Bulacan, for laboratory examination to determine the presence of the
any dangerous drug. The request for laboratory examination was signed by
SPO2 Maung.[9] Per Chemistry Report No. D-728-2002, [10] the substance bought
from appellant was positive for methamphetamine hydrochloride, a dangerous
drug.
 
The testimony of Nellson Cruz Sta. Maria, Forensic Chemical Officer who
examined the substance bought from appellant, was dispensed after both
prosecution and defense stipulated that the witness will merely testify on the
fact that the drugs subject matter of this case was forwarded to their office for
laboratory examination and that laboratory examination was indeed conducted
and the result was positive for methamphetamine hydrochloride. [11]
 
For the defense, the appellant took the witness stand, together with his
common-law wife, Amelia Mendoza; and nephew, Alejandro Lim.
 
From their collective testimonies, the defense version goes like this:
 
On 10 December 2002, appellant was sleeping in his sisters house in
Poblacion Dike when a commotion woke him up. His nephew, Alejandro Lim,
was shouting because the latter, together with appellants common-law wife,
Amelia Mendoza, and a niece, was being punched and kicked by several police
officers. When appellant tried to pacify the policemen and ask them why they
were beating up his common-law wife and other relatives, the policemen
arrested him, mauled him, punched him on the chest, slapped him and hit him
with a palo-palo. He sustained swollen face, lips and tooth. His common-law
wife was likewise hit on the chest with the palo-palo.
 
The policemen then took appellant and his common-law wife to a house
located in the middle of a field where the former demanded P15,000.00 for
their liberty. The next day, appellant was brought to the police station.
 
Amelia Mendoza identified PO1 Tolentino and PO1 Barreras as the police
officers who manhandled them and who demanded P15,000.00 so that she and
appellant could go home. The following day at 6:00 a.m., she said her child and
cousin arrived with the P15,000.00. She was released but appellant was
detained. She does not know why the police officers filed this case against
appellant. What she knows is that they were asking money from them.
 
Alejandro Lim merely corroborated the testimonies of appellant and
Amelia Mendoza.
 
On 8 March 2004, the trial court rendered its decision convicting
appellant of Violation of Section 5, Article II of Republic Act No. 9165, and
sentenced him to life imprisonment and to pay a fine of P5,000,000.00. The
dispostive portion of the decision reads:
 
WHEREFORE, the foregoing considered, this Court hereby finds
accused Norberto del Monte y Gapay @ Obet GUILTY beyond
reasonable doubt of the offense of Violation of Section 5, Art. II of
R.A. 9165 and sentences him to suffer the penalty of LIFE
IMPRISONMENT and a fine of P5,000,000.00. With cost.
 
The drugs subject matter of this case is hereby ordered forfeited in
favor of the government. The Branch of this Court is directed to
turn over the same to the Dangerous Drugs Board within ten (10)
days from receipt hereof for proper disposal thereof.[12]
 
 
The trial court found the lone testimony of PO1 Gaudencio M. Tolentino,
Jr. to be credible and straightforward. It established the fact that appellant was
caught selling shabu during an entrapment operation conducted on 10
December 2002. Appellant was identified as the person from whom PO1
Tolentino bought P300.00 worth of shabu as confirmed by Chemistry Report
No. D-728-2002. On the other hand, the trial court was not convinced by
appellants defense of frame-up and denial. Appellant failed to substantiate his
claims that he was merely sleeping and was awakened by the screams of his
relatives who were being mauled by the police officers.
Appellant filed a Notice of Appeal on 10 March 2004.[13] With the filing
thereof, the trial court directed the immediate transmittal of the entire records
of the case to us.[14] However, pursuant to our ruling in People v. Mateo,[15] the
case was remanded to the Court of Appeals for appropriate action and
disposition.[16]
 
On 28 May 2007, the Court of Appeals affirmed the trial courts decision
but reduced the fine imposed on appellant to P500,000.00. It disposed of the
case as follows:
 
WHEREFORE, the appeal is DISMISSED and the decision
dated March 8, 2004 of the RTC, Branch 78, Malolos, Bulacan, in
Criminal Case No. 3437-M-02, finding accused-appellant Norberto
del Monte guilty beyond reasonable doubt of Violation of Section 5,
Article II, Republic Act No. 9165, and sentencing him to suffer the
penalty of life imprisonment is AFFIRMED with
the MODIFICATION that the amount of fine imposed upon him is
reduced from P5,000,000.00 to P500,000.00.[17]
 
 
A Notice of Appeal having been timely filed by appellant, the Court of Appeals
forwarded the records of the case to us for further review.[18]
 
In our Resolution[19] dated 10 December 2007, the parties were notified
that they may file their respective supplemental briefs, if they so desired,
within 30 days from notice. Both appellant and appellee opted not to file a
supplemental brief on the ground they had exhaustively argued all the relevant
issues in their respective briefs and the filing of a supplemental brief would
only contain a repetition of the arguments already discussed therein.
 
Appellant makes a lone assignment of error:
 
THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-
APPELLANT GUILTY OF THE OFFENSE CHARGED DESPITE THE
INADMISSIBILITY OF THE EVIDENCE AGAINST HIM FOR
FAILURE OF THE ARRESTING OFFICERS TO COMPLY WITH
SECTION 21 OF R.A. 9165.[20]
 
 
Appellant anchors his appeal on the arresting policemens failure to strictly
comply with Section 21 of Republic Act No. 9165. He claims that pictures of
him together with the alleged confiscated shabu were not taken immediately
upon his arrest as shown by the testimony of the lone prosecution witness. He
adds that PO1 Tolentino and PO1 Antonio Barreras, the police officers who had
initial custody of the drug allegedly seized and confiscated, did not conduct a
physical inventory of the same in his presence as shown by their joint affidavit
of arrest. Their failure to abide by said section casts doubt on both his arrest
and the admissibility of the evidence adduced against him.
 
At the outset, it must be stated that appellant raised the police officers alleged
non-compliance with Section 21[21] of Republic Act No. 9165 for the first time
on appeal. This, he cannot do. It is too late in the day for him to do
so. In People v. Sta. Maria[22] in which the very same issue was raised, we
ruled:
 
The law excuses non-compliance under justifiable
grounds. However, whatever justifiable grounds may excuse the
police officers involved in the buy-bust operation in this case from
complying with Section 21 will remain unknown, because
appellant did not question during trial the safekeeping of the items
seized from him. Indeed, the police officers alleged violations of
Sections 21 and 86 of Republic Act No. 9165 were not raised
before the trial court but were instead raised for the first time
on appeal. In no instance did appellant least intimate at the
trial court that there were lapses in the safekeeping of seized
items that affected their integrity and evidentiary
value. Objection to evidence cannot be raised for the first time
on appeal; when a party desires the court to reject the
evidence offered, he must so state in the form of
objection. Without such objection he cannot raise the question
for the first time on appeal. (Emphases supplied.)
 
 
In People v. Pringas,[23] we explained that non-compliance with Section 21 will
not render an accuseds arrest illegal or the items seized/confiscated from him
inadmissible. What is of utmost importance is the preservation of the integrity
and the evidentiary value of the seized items as the same would be utilized in
the determination of the guilt or innocence of the accused. In the case at bar,
appellant never questioned the custody and disposition of the drug that was
taken from him. In fact, he stipulated that the drug subject matter of this case
was forwarded to PNP Regional Crime Laboratory Office 3, Malolos, Bulacan for
laboratory examination which examination gave positive result for
methamphetamine hydrochloride, a dangerous drug. We thus find the integrity
and the evidentiary value of the drug seized from appellant not to have been
compromised.
 
We would like to add that non-compliance with Section 21 of said law,
particularly the making of the inventory and the photographing of the drugs
confiscated and/or seized, will not render the drugs inadmissible in
evidence. Under Section 3 of Rule 128 of the Rules of Court, evidence is
admissible when it is relevant to the issue and is not excluded by the law or
these rules. For evidence to be inadmissible, there should be a law or rule
which forbids its reception. If there is no such law or rule, the evidence must
be admitted subject only to the evidentiary weight that will accorded it by the
courts. One example is that provided in Section 31 of Rule 132 of the Rules of
Court wherein a party producing a document as genuine which has been
altered and appears to be altered after its execution, in a part material to the
question in dispute, must account for the alteration. His failure to do so shall
make the document inadmissible in evidence. This is clearly provided for in the
rules.
 
We do not find any provision or statement in said law or in any rule that will
bring about the non-admissibility of the confiscated and/or seized drugs due to
non-compliance with Section 21 of Republic Act No. 9165. The issue therefore,
if there is non-compliance with said section, is not of admissibility, but of
weight evidentiary merit or probative value to be given the evidence. The weight
to be given by the courts on said evidence depends on the circumstances
obtaining in each case.
The elements necessary for the prosecution of illegal sale of drugs are (1)
the identity of the buyer and the seller, the object, and consideration; and (2)
the delivery of the thing sold and the payment therefor. [24] What is material to
the prosecution for illegal sale of dangerous drugs is the proof that the
transaction or sale actually took place, coupled with the presentation in court
of evidence of corpus delicti.[25]
 
All these elements have been shown in the instant case. The prosecution
clearly showed that the sale of the drugs actually happened and that
the shabu subject of the sale was brought and identified in court. The poseur
buyer positively identified appellant as the seller of the shabu. Per Chemistry
Report No. D-728-2002 of Forensic Chemical Officer Nellson Cruz Sta. Maria,
the substance, weighing 0.290 gram, which was bought by PO1 Tolentino from
appellant in consideration of P300.00, was examined and found to be
methamphetamine hydrochloride (shabu).
 
In the case before us, we find the testimony of the poseur-buyer, together
with the dangerous drug taken from appellant, more than sufficient to prove
the crime charged. Considering that this Court has access only to the cold and
impersonal records of the proceedings, it generally relies upon the assessment
of the trial court, which had the distinct advantage of observing the conduct
and demeanor of the witnesses during trial. It is a fundamental rule that
findings of the trial courts which are factual in nature and which involve
credibility are accorded respect when no glaring errors, gross misapprehension
of facts and speculative, arbitrary and unsupported conclusions can be
gathered from such findings. The reason for this is that the trial court is in a
better position to decide the credibility of witnesses having heard their
testimonies and observed their deportment and manner of testifying during the
trial.[26]
The rule finds an even more stringent application where said findings are
sustained by the Court of Appeals.[27] Finding no compelling reason to depart
from the findings of both the trial court and the Court of Appeals, we affirm
their findings.
 
Appellant denies selling shabu to the poseur-buyer insisting that he was
framed, the evidence against him being planted, and that the police officers
were exacting P15,000.00 from him.
 
In the case at bar, the evidence clearly shows that appellant was the
subject of a buy-bust operation. Having been caught in flagrante delicto, his
identity as seller of the shabu can no longer be doubted. Against the positive
testimonies of the prosecution witnesses, appellants plain denial of the offenses
charged, unsubstantiated by any credible and convincing evidence, must
simply fail.[28]Frame-up, like alibi, is generally viewed with caution by this
Court, because it is easy to contrive and difficult to disprove. Moreover, it is a
common and standard line of defense in prosecutions of violations of the
Dangerous Drugs Act.[29] For this claim to prosper, the defense must adduce
clear and convincing evidence to overcome the presumption that government
officials have performed their duties in a regular and proper manner. [30] This,
appellant failed to do. The presumption remained unrebutted because the
defense failed to present clear and convincing evidence that the police officers
did not properly perform their duty or that they were inspired by an improper
motive.
The presentation of his common-law wife, Amelia Mendoza, and his
nephew, Alejandro Lim, to support his claims fails to sway. We find both
witnesses not to be credible. Their testimonies are suspect and cannot be given
credence without clear and convincing evidence. Their claims, as well as that of
appellant, that they were maltreated and suffered injuries remain
unsubstantiated. As found by the trial court:
 
The accused, on the other hand, in an effort to exculpate
himself from liability raised the defense of frame-up. He alleged
that at the time of the alleged buy bust he was merely sleeping at
the house of his sister. That he was awakened by the yells and
screams of his relatives as they were being mauled by the police
officers. However, this Court is not convinced. Accused failed to
substantiate these claims of maltreatment even in the face of his
wifes and nephews testimony. No evidence was presented to prove
the same other than their self-serving claims.[31]
 
 
Moreover, we agree with the observation of the Office of the Solicitor General
that the witnesses for the defense cannot even agree on what time the arresting
policemen allegedly arrived in their house. It explained:
 
To elaborate, appellant testified that it was 3 oclock in the
afternoon of December 10, 2002 when he was roused from his
sleep by the policemen who barged into the house of his sister
(TSN, July 7, 2003, p. 2). His common-law wife, however, testified
that it was 10-11 oclock in the morning when the policemen came
to the house (TSN, Oct. 13, 2003, p. 6). On the other hand,
Alejandro Lim testified that he went to sleep at 11 oclock in the
morning and it was 10 oclock in the morning when the policemen
arrived (TSN, Feb.2, 2004, p. 6). He thus tried to depict an absurd
situation that the policemen arrived first before he went to sleep
with appellant.[32]
 
 
Having established beyond reasonable doubt all the elements
constituting the illegal sale of drugs, we are constrained to uphold appellants
conviction.
 
The sale of shabu is penalized under Section 5, Article II of Republic Act
No. 9165. Said section reads:
 
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 0.290 gram of shabu to PO1
Tolentino, and there being no modifying circumstance alleged in the
information, the trial court, as sustained by the Court of Appeals, correctly
imposed the penalty of life imprisonment in accordance with Article 63(2) [33] of
the Revised Penal Code.
 As regards the fine to be imposed on appellant, the trial court pegged the
fine at P5,000,000.00 which the Court of Appeals reduced
to P500,000.00. Both amounts are within the range provided for by law but the
amount imposed by the Court of Appeals, considering the quantity of the drugs
involved, is more appropriate.
 
WHEREFORE, premises considered, the instant appeal is DENIED. The
Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 02070 dated 28 May
2007, sustaining the conviction of appellant Norberto Del Monte, a.k.a. Obet,
for violation of Section 5, Article II of Republic Act No. 9165, is
hereby AFFIRMED. No costs.
 
SO ORDERED.