FIRST DIVISION
PEOPLE OF THE
PHILIPPINES,
Appellee,
G.R.
No.
144157
June 10, 2003
-versus-
LOWELL SALUDES Y
DE GUZMAN ALIAS "NONOY
KALOG"
AND NELSON SUMALINOG
(AT LARGE),
Accused.
LOWELL SALUDES Y
DE GUZMAN ALIAS "NONOY
KALOG",
Appellant.
D E C I S I
O N
YNARES-SANTIAGO,
J.:chanroblesvirtuallawlibrary
This is an appeal from
the Decision[1]
dated February 1, 2000 of the Regional Trial Court of Davao City,
Branch
15, in Criminal Case No. 35,562-95, convicting LOWELL SALUDES y DE
GUZMAN
alias "NONOY KALOG",[2]
of violation of Section 4, Article II of Republic Act No. 6425 (The
Dangerous
Drugs Act of 1972), as amended by Republic Act No. 7659, and sentencing
him to suffer the penalty of Reclusion Perpetua.
Appellant Lowell Saludes
and Nelson Sumalinog were charged in an information that reads:
That on or
about 25 July 1995, in the City of Davao, Philippines, and within the
jurisdiction
of this Honorable Court, the above-named accused, conspiring,
confederating
together and helping one another, without being authorized by law,
willfully,
unlawfully and feloniously sold to a NARCOM Agent acting as a
poseur-buyer
1,940.8 grams of Marijuana dried leaves with stalks placed in a white
backpack
and a gray traveling bag which was sold in the total amount of Ten
Thousand
(10,000.00) Pesos, which is a prohibited drug.chanrobles virtual law library
CONTRARY TO LAW.[3]
Since Nelson Sumalinog
was at-large, only appellant was arraigned. He entered a plea of guilty,[4]
after which, the case was tried on its merits.
The facts, as established
by the prosecution, are as follows:
On July 25, 1995, at
10:00 a.m., the 11th Narcotics Field Unit of the Philippine National
Police,
based in Davao City, received word from a confidential informer (CI)
that
appellant and his co-accused, Nelson Sumalinog, were awaiting delivery
of a stock of marijuana from Kidapawan, North Cotabato. Police
Inspector
Efren Alcuizar, the unit’s Commanding Officer, organized a six-member
police
team[5]
to conduct a buy-bust operation. SPO1 Bartolome Impuerto was designated
as the poseur-buyer, while SPO3 Benedicto Redoble and the others were
to
act as back-up in securing the area.[6]
At 3:00 p.m. of that
same day, SPO1 Impuerto, SPO3 Redoble and the CI proceeded to the house
of Nelson on Mabini Boulevard, Davao City to commence the operations.
Redoble
waited around 10-15 meters away from the house while Impuerto and the
CI
went inside. The CI introduced Impuerto as the prospective buyer to
Nelson
and appellant.[7]
Impuerto told them that he was interested in buying ten kilos of
marijuana.
Nelson replied that they only have four kilos, and when Impuerto
expressed
his desire to close the deal right there and then, Nelson refused and
said
that he does not sell near his house.chanrobles virtual law library
Thus, Nelson and appellant
agreed to meet with Impuerto at 8:00 p.m. in the Aldevinco Market on
Claro
M. Recto Street to deliver the marijuana. Thereafter, the policemen
went
back to the precinct where they reported the arrangement to P/Insp.
Alcuizar.
The buy-bust team met and decided that Impuerto will raise his right
hand
to his head as a signal that the delivery was complete.cralaw:red
At 8:00 that night,
the buy-bust team proceeded to the Aldevinco Market. Impuerto stood in
front of Miami Foods and waited for appellant. Redoble positioned
himself
directly across the street fronting Aldevinco Shopping Center.
Commanding
Officer Alcuizar and the CI waited nearby in a parked car. The other
members
of the team were located around the premises. After about five minutes,
Nelson and appellant arrived in a taxicab. They were each carrying a
bag.
They approached Impuerto and, upon reaching him, appellant opened his
white
backpack to show its contents. Immediately after seeing the contents of
the bag, Impuerto gave his pre-arranged signal to the team and
declared,
"NARCOM ako." He then grabbed appellant while Redoble gave chase to
Nelson
but failed to catch him.[8]
The officers arrested
appellant and confiscated the two bags. They asked him the whereabouts
of Nelson and he said they might find him in his house at Mabini
Boulevard.
The officers, together with appellant, proceeded to Nelson’s house
where
they were able to talk to his wife, who said she did not know where her
husband was.[9]
The police then brought appellant to the police station.[10]
It was established that the white backpack belonged to appellant while
the gray traveling bag was owned by Nelson.[11]
The arresting officers subsequently executed their joint affidavit of
arrest.[12]
The duty investigator, SPO2 Jaime Santillan, thereafter forwarded[13]
the items to the Philippine National Police-Crime Laboratory in
Ecoland,
Davao City for examination. P/Insp. Noemi Austero, the Senior Chemist
later
testified that the items[14]
seized were dried marijuana fruiting tops with a total combined weight
of 1.691 kilos.[15]chanrobles virtual law library
In his defense, appellant
testified that between 7:00 and 8:00 p.m. of July 25, 1995, he went to
the house of one Larry Daylo on Claveria Street to buy marijuana to
help
him fall asleep. He bought four grams of marijuana for P 100.00, which
Larry handed to him in a white backpack.cralaw:red
As he was walking home,
he met several men in an alley. They pointed a gun at him and accused
him
of stealing. The men frisked him, grabbed his backpack, and ordered him
to board their vehicle parked on Claveria Street. Appellant was unable
to speak out of shock and fear. They stopped at Mabini Boulevard, where
the men alighted and entered a nearby house. He was left in the car
with
one of their companions. Half an hour later, the men returned carrying
a gray traveling bag which they placed in another vehicle together with
the white backpack. One of them called the media and the barangay
captain
and, shortly thereafter, news reporters arrived and took pictures of
the
house and the bags. Appellant was brought to Camp Domingo Leonor where
he was detained. He disclaimed any knowledge about the gray traveling
bag
and the house where it came from.[16]
On February 1, 2000,
the trial court rendered the appealed decision, the dispositive portion
of which states:
WHEREFORE,
the prosecution having proven the guilt of the accused, LOWELL SALUDES
is hereby sentenced to RECLUSION PERPETUA. The marijuana shall be given
to the Dangerous Drugs Board and/or the Regional Narcotic Command. The
preventive imprisonment of Lowell Saludes shall be credited in the
service
of his sentence if he agrees in writing to abide by the same
disciplinary
rule imposed upon a convicted prisoner pursuant to Article 29 of the
Revised
Penal Code.
SO ORDERED.[17]
In this appeal,
appellant
contends that the trial court erred in finding him guilty beyond
reasonable
doubt of the crime charged despite the fact that there was no
legitimate
buy-bust operation which led to his alleged apprehension.[18]chanrobles virtual law library
The appeal hangs mainly
on the alleged lack of credibility of the prosecution witnesses and the
frame-up theory. It is a settled rule that in cases involving
violations
of the Dangerous Drugs Act, credence is given to prosecution witnesses
who are police officers for they are presumed to have performed their
duties
in a regular manner, unless there is evidence to the contrary.[19]
Appellant claims that
based on the testimonies of the prosecution witnesses, it can be
established
that there was no buy-bust operation since there was actually no marked
money involved, contrary to what the arresting officers tried to show.[20]
According to him, these police officers perjured themselves in court to
vindicate whatever irregularities they may have committed in the
performance
of their duties, which led to his illegal apprehension.[21]chanrobles virtual law library
This factual issue raised
by accused-appellant will not exculpate him.cralaw:red
A buy-bust operation
is a form of entrapment that is resorted to for trapping and capturing
felons in the execution of their criminal plan. The operation is
sanctioned
by law and has consistently proved to be an effective method of
apprehending
drug peddlers. Unless there is clear and convincing evidence that the
members
of the buy-bust team were inspired by any improper motive or were not
properly
performing their duty, their testimonies with respect to the operation
deserve full faith and credit.[22]
Appellant’s reliance
on the alleged inexistence of the buy-bust money to disprove the fact
of
sale is misplaced. We have previously ruled that the use of dusted
money
is not indispensable to prove the illegal sale of drugs. In fact, the
absence
of marked money does not create a hiatus in the evidence for the
prosecution
provided that the prosecution has adequately proved the sale.[23]
In the case at bar,
we find that the prosecution was able to establish the fact of sale,
starting
from the time that Officers Impuerto and Redoble first went to Mabini
with
the CI at 3:00 p.m. of July 25, 1995 for their initial negotiation.
Their
agreement to meet at the Aldevinco Public Market at 8:00 p.m. that same
night was only for purposes of confirming the sale by the delivery of
the
marijuana. As far as the sale is concerned, the same was perfected
earlier
at 3:00 p.m.cralaw:red
Appellant’s claim of
frame-up must also fail. For the officers to frame him up, they must
have
known him prior to the incident. However, not a single shred of
evidence
was shown to bolster this claim. Rather, what was established was that
Officer Impuerto became aware of appellant and his illegal trade only
at
10:00 a.m. of July 25, 1995, when he learned of the tip from the CI.
The
informant even had to introduce Officer Impuerto to appellant and his
companion
before the officer began to negotiate a deal with him. Appellant
himself
admitted that he did not know the officers prior to this incident.
There
was, therefore, no motive for the officers to frame him up. Without
proof
of motive to falsely impute such a serious crime against appellant, the
presumption of regularity in the performance of official duty and the
findings
of the trial court on the credibility of witnesses shall prevail over
his
claim of having been framed.[24]chanrobles virtual law library
Quite simply, appellant’s
denial cannot prevail over the positive testimonies of the prosecution
witnesses. We are not unaware of the reality that, in some instances,
law
enforcers resort to the practice of planting evidence to extract
information
or even to harass civilians. However, like alibi, we view the defense
of
frame up with disfavor as it can easily be concocted and is commonly
used
as a standard line of defense in most prosecutions arising from
violations
of the Dangerous Drugs Act. We realize the disastrous consequences on
the
enforcement of law and order, not to mention the well-being of society,
if the courts, solely on the basis of the policemen’s alleged rotten
reputation,
accept in every instance this form of defense which can be so easily
fabricated.
It is precisely for this reason that the legal presumption that
official
duty has been regularly performed exists.[25]
Having established that
a legitimate buy-bust operation occurred in the case at bar, there can
now be no question as to the guilt of accused-appellant. Such operation
has been considered as an effective mode of apprehending drug pushers.[26]
If carried out with due regard to the constitutional and legal
safeguards,
it deserves judicial sanction.[27]
Section 4 of R.A. 6425,
as amended by R.A. 7659, prescribes the penalty of reclusion perpetua
to
death and a fine ranging from five hundred thousand pesos to ten
million
pesos on any person who, unless authorized by law, shall sell a
prohibited
drug. Such penalty shall be applied in all cases involving seven
hundred
fifty (750) grams or more of indian hemp or marijuana.[28]
Since there were neither mitigating nor aggravating circumstances
attending
the sale by appellant of approximately 1.691 kilos of marijuana, the
trial
court correctly imposed the lesser of the two indivisible penalties -
reclusion
perpetua.[29]chanrobles virtual law library
In addition, we sentence
appellant to pay the amount of P1,000,000.00 as fine, pursuant to the
above-cited
Section 4 of R.A. 6425, as amended, and current jurisprudence.[30]
An appeal in a criminal case throws the whole case wide open for review
and the reviewing tribunal can correct errors, though unassigned in the
appealed judgment, or even reverse the trial court’s decision on the
basis
of grounds other than those that the parties raised as errors.[31]chanrobles virtual law library
WHEREFORE, in view of
the foregoing, the decision dated February 1, 2000 of the Regional
Trial
Court, Branch 15, Davao City in Criminal Case No. 35,562-95, finding
appellant
Lowell Saludes y de Guzman @ "Nonoy Kalog" guilty beyond reasonable
doubt
of violation of Section 4, Article II of Republic Act No. 6425,
otherwise
known as the Dangerous Drugs Act of 1972, as amended, and sentencing
him
to suffer the penalty of reclusion perpetua, is AFFIRMED with the
MODIFICATION
that appellant is further sentenced to pay a fine of One Million Pesos
(P1,000,000.00).cralaw:red
SO ORDERED.cralaw:red
Davide, Jr., C.J., (Chairman),
Vitug, Carpio, and Azcuna, JJ.,
concur.
____________________________
Endnotes:
[1]
Penned by Judge Jesus V. Quitain.
[2]
Also referred to as "Noel" Saludes in the records.
[3]
Rollo, p. 9.chanrobles virtual law library
[4]
Record, p. 42.chanrobles virtual law library
[5]
Composed of SPO1 Bartolome Impuerto, SPO3 Benedicto Redoble, SPO2 Bato,
P/Insp. Efren Alcuizar, SPO2 David Lastimosa and one other officer;
TSN,
11 July 1995, pp. 3-6; TSN, May 22, 1997, p. 60.chanrobles virtual law library
[6]
Id.
[7]
Id.
[8]
TSN, July 11, 1996, pp. 6-8; TSN, May 22, 1997, p. 56.
[9]
TSN, September 5, 1996, p. 32.
[10]
Id.chanrobles virtual law library
[11]
TSN, June 10, 1997, p. 87.chanrobles virtual law library
[12]
Joint affidavit dated July 27, 1995, Record, pp. 3-4.chanrobles virtual law library
[13]
Via a Letter Request signed by P/Insp. Efren B. Alcuizar dated 26 July
1995, Record, p.5.
[14]
Designated as Specimen ‘A’ and ‘B’, weighing 862.9 and 829.9 grams
respectively.
[15]
TSN, July 9, 1997, pp. 94-97; Exhibit ‘B’, Chemistry Report No.
D-137-95
dated May 21, 1997.
[16]
TSN, July 14, 1999, pp. 180-185.chanrobles virtual law library
[17]
Record, pp. 22-30.chanrobles virtual law library
[18]
Accused-Appellant’s Brief, Record, p. 73.chanrobles virtual law library
[19]
People v. Bongalon, G.R. No. 125025, January 23, 2002, citing People v.
Johnson, 348 SCRA 526 (2000) and People v. Uy, 327 SCRA 325 (2000).
[20]
Accused-Appellant’s Brief, p. 20, Record, p.92.chanrobles virtual law library
[21]
Id.chanrobles virtual law library
[22]
Supra.chanrobles virtual law library
[23]
People v. Gireng, 241 SCRA 11, 16 (1995), citing People v. Pascual, 208
SCRA 393 (1992) and People v. Hoble, 211 SCRA 675 (1992).
[24]
Supra, note 19.chanrobles virtual law library
[25]
Id.chanrobles virtual law library
[26]
People v. Salazar, 266 SCRA 607 (1997).
[27]
Id.; People v. Herrera, 247 SCRA 433 (1995).
[28]
R.A. 6435, Article IV, Section 20, as amended.
[29]
Revised Penal Code, Article 63 (2)chanrobles virtual law library
.
[30]
People v. Ganenas, G.R. No. 141400, September 6, 2001, 364 SCRA 582.chanrobles virtual law library
[31]
People v. Lucero, G.R. Nos. 102407-08, March 26, 2001, citing People v.
Listerio, 335 SCRA 40 (2000). |