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THIRD DIVISION
G.R. No. 110260 August 11, 1994
THE PEOPLE OF THE PHILIPPINES, plaintiff/appellee, vs. JOSE VIVAR y PAYABYAB, accused/appellant.
The Solicitor General for plaintiff-appellee.chanrobles virtual law library
Public Attorney's Office for accused-appellant.
FELICIANO, J.:
Jose P. Vivar, 26 years old and married, was accused of violating Section 15, Article III of R.A. No. 6425, as amended, known as the Dangerous Drugs Act of 1972, in an Information 1which read:
The undersigned 1st Assistant Provincial Prosecutor hereby accuses JOSE VIVAR Y PAYABYAB of the crime of VIOLATION OF SEC. 15, ARTICLE III, R.A. No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended, committed as follows:chanrobles virtual law library
That on or about the 7th day of April 1992, in the Municipality of Dasmarinas, Province of Cavite, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law, did, then and there, wilfully and unlawfully, administer, deliver, give away to another and sell to one PO3 Nicanor Diaz P100.00 worth of Methamphetamine Hydrochloride commonly known as "shabu," a regulated drug which is prohibited by law, in violation of the provisions of R.A.
No. 6425, thereby causing damage and prejudice to the public interest.chanroblesvirtualawlibrarychanrobles virtual law libraryContrary to law.
After Vivar pleaded "not guilty" 2to the charge, trial ensued and in due time the trial court rendered a judgment of conviction 3dated 11 February 1993 finding Vivar guilty beyond reasonable doubt of the offense charged, and sentencing him to life imprisonment and to pay a fine of P20,000.00 and the costs of the suit.chanroblesvirtualawlibrarychanrobles virtual law library
On appeal, the lone assignment of error attributed the court a quo was its finding that the accused was guilty beyond reasonable doubt. 4chanrobles virtual law library
The relevant facts are summarized by the trial court's Decision:
Prior to April 7, 1992, the police authorities of Dasmarinas received reliable information from their asset that someone was selling illegal drugs at Sta. Cristina, Dasmarinas, Cavite. Reacting to this information, the Chief of Police of said town caused the place of the accused to be under surveillance. It was observed that many people frequented the place of the accused which the police authorities believed to be activities related to the buying and selling of shabu or methamphetamine hydrochloride. Thus, Chief Notario formed a team consisting of Police Officers Nicanor Diaz, Jerry Costa and Enrico Set for them to conduct a buy-bust operation furnishing them a P100.00 - peso bill with Serial
No. [XD] 720996 (Exhibit "F"). The designated poseur buyer was Nicanor Diaz.chanroblesvirtualawlibrarychanrobles virtual law libraryAs planned, the team proceeded to the place of the accused on April 7, 1992 at about 5:00 in the afternoon at Barangay Sta. Cristina, Dasmarinas, Cavite. Once thereat, Nicanor Diaz approached the accused who was out of the house but within his yard and made known his intention to buy shabu. The two team members placed themselves at strategic points from where they could observe Nicanor Diaz and the accused.chanroblesvirtualawlibrarychanrobles virtual law library
Nicanor Diaz handed to, and the accused accepted the, P100.00-peso bill. After receipt of the money, the accused entered the house and after a short while came back and handed to Diaz the shabu. At this point, Diaz gave the pre-arranged signal by touching or scratching his head. Whereupon, the other team members came rushing to the aid of Diaz in subduing the accused who was resisting arrest.chanroblesvirtualawlibrarychanrobles virtual law library
Diaz retrieved the P100.00-peso bill from the accused.chanroblesvirtualawlibrarychanrobles virtual law library
The accused was then brought to the police station where he, together with the shabu, was, turned over to the police investigator. The shabu was sent to the NBI Forensic Chemistry Section for laboratory examination which proved that the specimen sent was indeed shabu (Exhibit "B"). 5chanrobles virtual law library
These facts were testified to by PO3 Nicanor Diaz and PO3 Enrico Set, members of the Philippine National Police ("PNP") detailed at Dasmarinas, Cavite and more significantly, members of the PNP team that conducted the buy-bust operation. The other pieces of evidence marked and offered by the prosecution during trial are (a) Exhibit "A," a Letter-request for examination of the specimen ("white crystalline substance wrapped in an aluminum foil" weighing 0.0723 gram before the forensic examination) obtained during the buy-bust operation; 6(b) Exhibit "B," Certification by the NBI Forensic Chemistry Section that the specimen sent for examination tested positive for "shabu;" 7(c) Exhibit "C," Dangerous Drug Report No. DD-92-259; 8(d) Exhibit "D," an envelope containing the "shabu" obtained and confiscated from the buy-bust operation; 9(e) Exhibits "E" and "E-1," the sinumpaang salaysay and signature respectively of PO3 Nicanor Diaz; 10and (f) Exhibit "F," the marked money used in the buy-bust operation. 11chanrobles virtual law library
The defense set up by the accused consisted of denial. As summed up by the trial court:
. . . . According to the defense of the accused, at about 2:00 to 3:00 p.m. of that date [7 April 1992], the trio of Nicanor Diaz, Jerry Costa and Enrico Set came to his place while he was in his yard with his sister and niece. Without doing anything, the police, after a civilian asset [informer] threw a P100.00 peso bill towards him, immediately arrested him despite his protestations. He denied selling shabu to Nicanor Diaz. 12chanrobles virtual law library
Except for his testimony, no other evidence, documentary or testimonial, was offered by the accused.chanroblesvirtualawlibrarychanrobles virtual law library
The Court is unable to find merit in this appeal.chanroblesvirtualawlibrarychanrobles virtual law library
Firstly, the denial by the accused, much like alibi, is an inherently weak defense and cannot prevail over the positive identification of Vivar as the doer of the crime and vendor of shabu; 13all the more so where, as here, no ill-motive can be attributed the accused's captors and accusers. 14In the absence of proof of an evil motive (e.g., extortion, personal vengeance), the presumption is that the police officers' motive in carrying out the buy-bust operations was simply to perform their official duty which included the enforcement of our laws relating to dangerous drugs.chanroblesvirtualawlibrarychanrobles virtual law library
Secondly, the propositions and arguments of the appeal, i.e., (a) the lack of a formal complaint against Vivar prior to subjecting him to surveillance; (b) the lack of a mission order; and (c) the alleged impossibility of identification by virtue of the proximity of the surveillance team to the door step of the accused where the illegal transaction was consummated; (d) the alleged lack of conclusive evidence to show that the accused was peddling shabu; and (e) the supposed inconsistencies in the testimonies of the prosecution witnesses are insufficient to overcome the positive and straightforward testimonies of the arresting officers that accused Jose "Bubot" Vivar had sold, during a buy-bust operation, shabu to PO3 Nicanor Diaz. 15chanrobles virtual law library
The relevant portion of the testimony of PO3 Nicanor Diaz is as follows:
INTERPRETER:chanrobles virtual law library
Witness pointing to a person inside the courtroom who, when asked, identified himself as Jose Vivar.chanroblesvirtualawlibrarychanrobles virtual law library
ASST. PROS. NOCHE:chanrobles virtual law library
Now, did you come to know later on the name of this Bubot?chanrobles virtual law library
[PO3 NICANOR DIAZ]
A: Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: And, what is the complete name?chanrobles virtual law library
A: Jose Vivar, sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: How did you come to know the name of this person?chanrobles virtual law library
A: He gave his name to the investigator, sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: You mean when you stated before this Honorable Court Jose Vivar, Bubot and according to that accused, Noel, they are the same?chanrobles virtual law library
A: Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: How did you conduct this buy-bust operation, you acting as poseur buyer?chanrobles virtual law library
A: Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: And, during that surveillance within that vicinity, where in Barangay Sta. Cristina, DBB, Cavite did you conduct surveillance?chanrobles virtual law library
A: Near the house of Bubot, sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: Inside or outside the house?chanrobles virtual law library
A: Outside the house, sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: And, what did you do, or what happened when you arrived there in that Barangay Sta. Cristina, Dasmarinas, Cavite?chanrobles virtual law library
A: We saw several different persons coming and going to the house of the accused. So, we concluded that he was selling shabu.chanroblesvirtualawlibrarychanrobles virtual law library
Q: And, how far were you when you noticed that?chanrobles virtual law library
A: Five houses away, sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: When you say five houses away from this point, referring to this building?chanrobles virtual law library
A: Up to Onding's store, sir.
COURT:
About thirty meters, more or less.chanroblesvirtualawlibrarychanrobles virtual law library
ASST. PROS. NOCHE:chanrobles virtual law library
After you come to that conclusions that this accused was, in your behalf, engaged in that selling, what did your group do, if any?
A: We agreed that I will pose as buyer, sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: And, what did you do as poseur buyer?chanrobles virtual law library
A: I went directly to the house of Bubot and bought shabu, sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: Was it outside or inside the house when you approached him?chanrobles virtual law library
A: Outside the house, sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: How far was Bubot from the door of the house?chanrobles virtual law library
A: Just outside the door, sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: An armlength?chanrobles virtual law library
A: Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: And, what was Bubot doing, if any, when you approached him and told him you were buying shabu? What did you do rather?chanrobles virtual law library
A: I told him I will buy shabu worth P100.00, sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: And, where was that money . . . Did you have money at that time?chanrobles virtual law library
A: Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: What is the amount of that money?chanrobles virtual law library
A: P100.00 sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: Do you know the serial number of that money, if you remember?chanrobles virtual law library
A: Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: Can you state before this Honorable Court the serial number?chanrobles virtual law library
A: XD720996, sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: And, what did you do with the money when you approached him?chanrobles virtual law library
A: I gave him the money, sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: When he received the money, what did this Jose Vivar do, if any?chanrobles virtual law library
A: He went inside the house, sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: And, after that?chanrobles virtual law library
A: He came back with the shabu in an aluminum foil, sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: What did you do when he handed to you that aluminum foil with shabu?chanrobles virtual law library
A: I touched my head as a signal to my companions that I was able to buy shabu from him and I arrested him.chanroblesvirtualawlibrarychanrobles virtual law library
Q: After you made that sign, what happened next?chanrobles virtual law library
A: My companions arrived while Jose Vivar was struggling.chanroblesvirtualawlibrarychanrobles virtual law library
Q: What do you mean by 'nagpupumiglas'?chanrobles virtual law library
A: He was resisting, sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: What, if any, did your companions do when they approached you and Vivar?chanrobles virtual law library
A: They approached to arrest that man and brought him to the police station of Dasmarinas for investigation, sir." 16
On the other hand, the corroborative testimony of PO3 Enrico Set is as follows:
"[ASST. PROS. NOCHE]
Q: And after the said money was handed to Nicanor Diaz, what did your group do?
[PO3 ENRICO SET]
A: We proceeded to Barangay Sta. Cristina, sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: And what happen[ed] there if any, were you able to conduct a buy-bust operation?chanrobles virtual law library
A: Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: And who was the one acted as poseur buyer?chanrobles virtual law library
A: Nicanor Diaz, sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: And was said police officer . . . or what did this police officer do as poseur buyer?chanrobles virtual law library
A: We agreed that it was Nicanor Diaz who will act as poseur buyer and upon buying he will made a signal by scratching his head, that means to buy shabu.chanroblesvirtualawlibrarychanrobles virtual law library
Q: When you arrived at the place, by the way, do you know the person who was the object of that buy bust operation?chanrobles virtual law library
A: Not yet, sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: When you arrived at that place, what happen[ed] if there is any?chanrobles virtual law library
A: Nicanor Diaz was trying to buy [while] we were in another house and then when we saw that he scratched his head we approached him and helped subdue this Jose Vivar because he was resisting Nicanor Diaz.chanroblesvirtualawlibrarychanrobles virtual law library
Q: By the way, before you proceeded to the place did you have any idea to what particular house you were going to conduct the buy-bust operation? chanrobles virtual law library
A: It was Nicanor Diaz, I do not know but it was Nicanor Diaz who knows.chanroblesvirtualawlibrarychanrobles virtual law library
Q: Where were you and Mr. Costa when this Diaz proceeded to the said place where he will buy the shabu?chanrobles virtual law library
A: In any house also in the same Barangay Sta. Cristina, sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: And how far is that house, how many meters away.chanroblesvirtualawlibrarychanrobles virtual law library
A: More or less 30 meters, sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: And when, according to you, you approached them, after that Diaz was able to by shabu?chanrobles virtual law library
A: Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: And you helped him and approached this person?chanrobles virtual law library
A: Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: What did you do after your group apprehended that person?chanrobles virtual law library
A: We brought him to our police investigator, sir, to investigate.chanroblesvirtualawlibrarychanrobles virtual law library
Q: If said person that you mentioned who was apprehended during that time is inside this courtroom, will you be able to identify the same?chanrobles virtual law library
A: Yes, sir (witness is pointing to a person who when asked his name Jose Vivar).chanroblesvirtualawlibrarychanrobles virtual law library
Q: By the way, what happen[ed] to the shabu which was quote (sic) by Diaz from the accused?chanrobles virtual law library
A: We turn[ed] over to our investigator, sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: How about the money which was used?chanrobles virtual law library
A: We turn[ed] over the money to the police investigator." 17
In respect of the lack of a formal complaint against Vivar and of a police mission order, the Court has held that it will not pretend to establish on a prior basis what detailed acts or measures police authorities might undertake and carry out in entrapment operations 18so long, of course, as such measures do not constitute violations of the constitutional and statutory rights of the accused. We are not aware of any constitutional or statutory provision which requires a prior formal complaint against a suspect before an entrapment operation may be mounted against him.chanroblesvirtualawlibrarychanrobles virtual law library
As to the alleged testimonial inconsistencies, the issue is ultimately one of the credibility of witnesses. The Court has countless times reiterated the rule that the findings of the trial court are accorded great weight and respect as trial judges are undeniably in the best position to weigh the declarations of witnesses in light of their opportunity to observe physically the witnesses' conduct and attitude during trial. 19Furthermore, inconsistencies in the testimonies of witnesses do not necessarily damage their credibility provided such inconsistencies relate to minor details and are reasonably explainable in the specific circumstances of a case. Inconsequential variances are commonly considered as badges of truth. 20chanrobles virtual law library
Finally, appellant's contention that the presumption of regularity in the performance of official duties by police officers must yield to the constitutional presumption of innocence indicates a basic confusion in the mind of appellant or his counsel. The constitutional presumption of innocence is, after all, a presumption merely which is precisely overcome by affirmative proof beyond reasonable doubt. The presumption of regularity of performance of official duty cannot, by itself, constitute proof of guilt beyond reasonable doubt. We believe that, in the present case and contrary to the submission of the appellant, the accused's guilt was established beyond reasonable doubt.chanroblesvirtualawlibrarychanrobles virtual law library
We turn, finally, to determination of the penalty properly imposable upon appellant Vivar. Under Sections 15 and 20 of R.A. No. 6425, as last amended by R.A. No. 7659, as construed and applied with retroactive effect in the very recent Decision of this Court in People v. Martin Simon (G.R. No. 93028, 29 July 1994), and given the circumstances that (a) the "shabu" sold by appellant Vivar amounted only to one (1) aluminum foil with a weight of 0.0723 gram and that (b) no aggravating or mitigating circumstance was found in the instant case, the penalty properly imposable upon appellant Vivar is prision correccional in its medium period. Applying the Indeterminate Sentence Law, again in accordance with the majority ruling of this Court in the Martin Simon case, appellant Jose Vivar is properly sentenced to imprisonment for a term ranging from, as a minimum, six (6) months of arresto mayor to a maximum of two (2) years and four (4) months of prision correccional in its medium period.chanroblesvirtualawlibrarychanrobles virtual law library
WHEREFORE, for all the foregoing, the Decision of the Regional Trial Court, Fourth Judicial Region, Branch 21 of Imus, Cavite in Criminal Case
No. 2287-92 dated 11 February 1993 is hereby AFFIRMED, with the modifications, however, that the fine of P20,000.00 is deleted, and that appellant shall suffer imprisonment for an indeterminate period ranging from six (6) months of arresto mayor as minimum to two (2) years and four (4) months of prision correccional as maximum. Costs against appellant.chanroblesvirtualawlibrarychanrobles virtual law library
SO ORDERED.
Bidin, Romero, Melo and Vitug, JJ., concur.
Endnotes:
1 Rollo, p. 5; Records, p. 1.chanroblesvirtualawlibrarychanrobles virtual law library
2 Records, p. 18.chanroblesvirtualawlibrarychanrobles virtual law library
3 Penned by Executive Judge Roy S. del Rosario.chanroblesvirtualawlibrarychanrobles virtual law library
4 Appellant's Brief, Rollo, pp. 33-38.chanroblesvirtualawlibrarychanrobles virtual law library
5 Trial Court Decision, Records, pp. 78-79.chanroblesvirtualawlibrarychanrobles virtual law library
6 Records, p. 31.chanroblesvirtualawlibrarychanrobles virtual law library
7 Id., p. 32.chanroblesvirtualawlibrarychanrobles virtual law library
8 Id., p. 33.chanroblesvirtualawlibrarychanrobles virtual law library
9 Records (Attached Separate Envelope).chanroblesvirtualawlibrarychanrobles virtual law library
10 Records, p. 4.chanroblesvirtualawlibrarychanrobles virtual law library
11 Records (Attached Separate Envelope).chanroblesvirtualawlibrarychanrobles virtual law library
12 Trial Court Decision, Records, p. 79.chanroblesvirtualawlibrarychanrobles virtual law library
13 People v. Gomez, G.R. No. 106344, 6 January 1994 and People v. Belibet, 199 SCRA 587 (1991).chanroblesvirtualawlibrarychanrobles virtual law library
14 People v. Pelones, G.R. No. 86159-60, 28 February 1994.chanroblesvirtualawlibrarychanrobles virtual law library
15 People v. Barte, G.R. No. 103211, 28 February 1994.chanroblesvirtualawlibrarychanrobles virtual law library
16 TSN (Nicanor Diaz), 10 August 1992, pp. 3-6.chanroblesvirtualawlibrarychanrobles virtual law library
17 TSN (Enrico Set), 8 September 1992, pp. 5-8.chanroblesvirtualawlibrarychanrobles virtual law library
18 People v. Roldan, G.R. No. 98398, 6 July 1993.chanroblesvirtualawlibrarychanrobles virtual law library
19 People v. Lagrosa, G.R. No. 105956-57, 23 February 1994; People v. Roldan, supra; People v. Naguita, 208 SCRA 207 (1992); People v. Li Wai Cheung, 214 SCRA 504 (1992); People v. Bolosa, 209 SCRA 476 (1992); People v. Ocampo, 206 SCRA 223 (1992); People v. Magaluna, 205 SCRA 266 (1992); People v. Fabian, 204 SCRA 730 (1991); Eduardo Arroyo v. Court of Appeals and Rubi Vera-Neri v. People, 204 SCRA 750 (1991); People v. Toribio, 198 SCRA 529 (1991); People v. Catubig, 195 SCRA 505 (1991); People v. Flores, 185 SCRA 366 (1990); People v. Caringal, 176 SCRA 404 (1989); People v. Perez, 175 SCRA 203 (1989); People v. Valdez and Orodio, 159 SCRA 152 (1988) and People v. Cayago, 158 SCRA 586 (1988).chanroblesvirtualawlibrarychanrobles virtual law library
20 People v. Canceran, G.R. No. 104866, 31 January 1994.
