[G.R. NO. 170837 : September 12, 2006]
THE PEOPLE OF THE PHILIPPINES, Appellee, v. DEXTER TORRES y DELA CRUZ, Appellant.
D E C I S I O N
CALLEJO, SR., J.:
Dexter Torres was charged with violation of Section 8, Article II of Republic Act (R.A.) No. 6425, as amended, for unlawful possession of 831.91 grams of marijuana fruiting tops, a prohibited drug; as well as Section 16, Article III of the same law for illegal possession of 0.26 grams of methamphetamine hydrochloride, a regulated drug commonly known as shabu.
The indictment in Criminal Case No. 08-1334 for violation of Section 8, Article II of R.A. No. 6425 reads:
Upon the other hand, the accusatory portion of the Information in Criminal Case No. 08-1344 for violation of Section 16, Article III of the same law reads:
The two (2) criminal cases were jointly tried at the Regional Trial Court (RTC) of Aparri, Cagayan, Branch 8. Dexter pleaded not guilty to both charges.3
The case for the prosecution is as follows:
In the early afternoon of August 13, 2001, operatives of the Second Regional Narcotics Office led by PSI Teodolfo M. Tannagan, SPO4 Abelardo M. Lasam, SPO1 Jessie O. Liwag and PO2 Tirso T. Pascual, as members, and a back-up team from the Gonzaga Police Station, armed with a search warrant issued by Executive Judge Jimmy Henry F. Lucson, Jr. of the RTC of Tuguegarao City, Cagayan, raided the house of Dexter Torres located at Salvanera St., Barangay Paradise, Gonzaga, Cagayan. The team was joined by the two barangay councilmen, Edward Sagnep and Ernesto Vivit.
Just before searching Dexter's house, SPO4 Lasam presented the search warrant and introduced the raiding team to Henny Gatchalian, Dexter's sister, and Dexter's children. When asked where the owners of the house were, Henny responded that her brother and his wife had just left. In their presence and that of the two kagawads, the team searched the master's bedroom and found the following stashed inside the second deck of a wooden cabinet: 1) a brick of dried suspected marijuana wrapped inside newsprint; 2) two plastic sachets of suspected shabu; 3) three pieces of aluminum foil; 4) a colored green plastic lighter; and 5) a small transparent plastic bag. The raiders then prepared an inventory4 of the articles seized, a copy of which was handed to Henny. After photos of the confiscated articles were taken, they were placed in a plastic bag and turned over to SPO4 Lasam, who submitted the same to the Regional Crime Laboratory Office 2, Camp Alimanao, Tuguegarao, Cagayan, for forensic examination.5
That same afternoon, Kagawads Edward and Ernesto both signed a certification6 as to the conduct of the search, certifying, among others, that it was conducted in an orderly and peaceful manner; no unnecessary force was employed; nobody was hurt; and nothing was taken without proper receipt. Henny, however, refused to sign the certification.
PSI Forensic Chemist Maria Leonora C. Camarao examined the substance seized from Dexter's house which tested positive for marijuana and shabu. On the witness stand, Maria confirmed her Physical Science Reports, hereunder reproduced as follows:
On December 5, 2002, the prosecution formally offered its exhibits, which included the brick of marijuana leaves and fruiting tops weighing 831.91 grams (Exhibit "A"); and the shabu which weighed 0.26 grams (Exhibits "B" and "B-1"). Thereafter, the prosecution rested its case.8
Dexter, through counsel, objected to the offer of evidence on the ground that the same were "confiscated not from [his] possession as he was then staying in Laoag City."9
The defense consists of the testimonies of Dexter himself, his sister Henny Gatchalian, and his relative, Kagawad Ernesto, are predicated on denial and frame-up.
The defense version is as follows:
Thirty-eight-year old Dexter eked out a living as a carpenter. He averred that weeks before his house was searched, he was already in Gabu, Laoag City, working in a house construction project of his sister-in-law Rema Pentigrado. He left for Gabu, Laoag City on July 28, 2001 with his wife. After entrusting his children to the care of his father, and his sister Henny, he padlocked his place and gave the key to his sister. He declared that he only came to know of the incident from Henny when he and his wife arrived home from Gabu, Laoag City.10
Kagawad Ernesto, aged 65 years, Dexter's kin, narrated that on August 13, 2001 he was at his house. A policeman from the Gonzaga Police Station arrived and asked him to be a witness in a raid that lawmen would conduct in Dexter's residence. He acceded. However, upon reaching the premises, he found out that the search had already been conducted. He was informed that a brick of marijuana had been found inside the house, but he did not see it. Later, upon the prodding of the police, he signed a confiscation receipt without reading its contents.11
Henny, aged 35 years, recounted that at about 1:00 p.m. of August 13, 2001, she was at her father's house when a number of policemen arrived. They asked her to open the door, and as she was forced to do so, she accompanied the police to the neighboring house and unlocked the place. Inside, she was placed in one of the rooms and was ordered not to move a muscle. Thereafter, the policemen ransacked the cabinets, chests and drawers. Meanwhile, she remained confined in the room, without a clue as to what was taking place. After the search, the policemen brought her out of the house and showed to her the shabu and marijuana which the police claimed to have found inside the house. She denied signing anything save the search warrant. Henny, however, told the court that it was Dexter's mistress, not his wife, that her brother brought to Gabu, Laoag City.12
On November 14, 2003, the RTC rendered a joint decision convicting Dexter of the offenses charged. The fallo reads '
The trial court rejected the defense of alibi cum frame-up of the accused and upheld in favor of the prosecution the presumption of regularity in the performance of official duties.
Dexter appealed his conviction to this Court, docketed as G.R. NOS. 162542-43, praying for the reversal of the judgment. He claimed that the search warrant had been unlawfully implemented and that the prosecution failed to prove his guilt beyond reasonable doubt. He assigned the following errors purportedly committed by the trial court:
On July 28, 2005, the judgment of conviction was affirmed, but was modified as to the penalty imposed in Criminal Case No. 08-1344. In disposing the appeal, the CA gave short shrift to Dexter's claim that the two-witness rule under Sec. 8, Rule 126 of the Revised Rules of Court was violated. Emphatically pointing out that at the time of the search, Henny was living in Dexter's house, and therefore a lawful occupant, it held that the two-witness rule applies only in the absence of a lawful occupant of the searched premises. Citing People v. Simon,17 and considering that only 0.26 grams of shabu was involved, the appellate court reduced Dexter's sentence to an indeterminate penalty of six (6) months of arresto mayor to four (4) years and two (2) months of prison correccional. The petitory portion of the CA decision reads '
Dexter sought reconsideration, which the CA denied.19
Unfazed, Dexter, now the appellant, appealed anew to this Court, adopting by way of manifestation the same arguments before the CA.20
Appellant insists that the items seized from his house are inadmissible as evidence, being the fruits of an illegal search. He maintains that the manner of search conducted in his residence had failed to comply with the mandatory provisions of Section 8 (formerly Section 7), Rule 126 of the 2000 Rules of Criminal Procedure, which provides:
Appellant argues that Henny is not a "lawful occupant" of the house as contemplated in the above section. And even if she is one, her presence did not cure the illegality of the search since she was prevented by the police from actually witnessing the search as it was being conducted. He points out that her sister was confined by the police in one of the rooms of the house while the simultaneous search was going on in the other portion thereof. Moreover, though the raiding party had summoned two barangay kagawads as witnesses, the police were already through searching the house when Kagawad Ernesto arrived. In other words, the latter, too, had failed to witness the search.21
The appeal is not meritorious.
Contrary to appellant's claim, Henny and Barangay Kagawad Ernesto were present when the lawmen searched his house. The illicit drugs and paraphernalia were found in the master's bedroom stashed inside the second deck of a wooden cabinet. This is clear from the positive and categorical testimony of PO2 Tirso Pascual, a member of the raiding team:
PO2 Pascual's above testimony was corroborated by SPO1 Jessie Liwag, likewise a member of the raiding team that searched the house of the appellant.24 Besides, Henny and Kagawad Ernesto, were not the only witnesses to the search; Kagawad Edward Sagnep was also present during the entire search. This is evinced by the testimonies of PO2 Pascual and the certification signed by the two Kagawads.
The RTC and the CA correctly rejected the testimonies of defense witnesses Henny and Kagawad Ernesto for being biased and riddled with inconsistencies. We are in full accord with the following encompassing disquisition of the appellate court:
Consistent with the trial court's own findings as between the testimony of Gatchalian and the testimonies of the police officers, this Court finds the testimonies of the police officers more credible. Aside from the principle that testimonies of police officers deserve full faith and credit given the presumption that they have performed their duties regularly, we note that the prosecution witnesses gave consistent and straightforward narrations of what transpired on August 13, 2001. The police officers have consistently testified that Gatchalian was then in the house of the accused-appellant when they arrived thereat, and that she was with them when they conducted the search inside the house.
The presence of barangay council members Edward Sagnep and Ernesto Vivit during the search was also sufficiently established. These barangay officials even affixed their signatures on the confiscation receipt issued by PO3 Jessie Liwag that contains a statement that the seized properties were found in the presence of Brgy. Kag. Edward R. Sagnep and Brgy. Kag. Ernesto Q. Vivit.
Barangay kagawad Ernesto Vivit's retraction and assertion that he was not really present when the policemen searched the house of the accused-appellant fail to persuade. During cross-examination, Vivit, a relative of the accused-appellant, even testified in court:
As correctly pointed out by the trial court:
More importantly, it is now too late in the day for appellant to object to the admissibility of the evidence seized pursuant to the search warrant. Though he seasonably objected after the prosecution formally offered its evidence, his objection was not based on constitutional grounds, but rather on the ground that he was not in actual possession of the premises at the time the search was conducted.26
In the case of Demaisip v. Court of Appeals,27 we held:
Indeed, the right to be secure from unreasonable searches and seizures, like any other right, can be waived and the waiver may be made either expressly or impliedly.28
Hard to believe is appellant's insinuation that the evidence for the prosecution were planted. His very conduct following his arrest would belie this allegation:
First. He failed to complain about this matter when he was apprehended nor bestirred himself to bring it up during his preliminary investigation. He could not even identify the person, the policeman or policemen who allegedly planted the evidence. In fact, it was only during this appeal that appellant accentuated this alleged frame-up.
Second. The appellant failed to inform his counsel of the alleged planting of evidence by the policemen; if he had done so, for sure, the said counsel would have prepared his affidavit and filed the appropriate motion in court for the suppression of the things/articles seized by the policemen.
Third. We find it incredible that the policemen planted said evidence in full view of Kagawad Edward, whose presence during the search was undisputed. This is so because the policemen could be prosecuted for planting evidence and, if convicted, sentenced to death under Section 19 of R.A. No. 7659:
SECTION 19. Section 24 of Republic Act No. 6425, as amended, known as the Dangerous Drugs Act of 1972, is hereby amended to read as follows:
The incantation of frame-up is nothing new. It is a common and standard line of defense in most prosecutions for violation of the Dangerous Drugs Law. While such defense cannot and should not always be considered as contrived, nonetheless, it is generally rejected for it can easily be concocted but is difficult to prove. Police officers are, after all, presumed to have acted regularly in the performance of their official functions, in the absence of clear and convincing proof to the contrary, or that they are motivated by ill-will.29
Appellant next submits that his absence during the search coupled with the fact that he was not caught in possession of the illicit drugs and paraphernalia are circumstances sufficient enough to exonerate him.30
We are not persuaded.
The essential elements of the crime of illegal possession of regulated drugs are the following: (a) the accused is found in possession of a regulated drug; (b) the person is not authorized by law or by duly constituted authorities; and (c) the accused has knowledge that the said drug is a regulated drug.31
The elements of illegal possession of prohibited drugs are as follows: (a) the accused is in possession of an item or object which is identified to be a prohibited drug; (b) such possession is not authorized by law; and (c) the accused freely or consciously possessed the prohibited drug.32
The fact that appellant was not in his residence when it was searched nor caught in flagrante delicto possessing the illicit drugs and paraphernalia does not dent the case of the prosecution. As a matter of law, when prohibited and regulated drugs are found in a house or other building belonging to and occupied by a particular person, the presumption arises that such person is in possession of such drugs in violation of law, and the fact of finding the same is sufficient to convict. Otherwise stated, the finding of the illicit drugs and paraphernalia in the house owned by the appellant raised the presumption of knowledge and, standing alone, was sufficient to convict.33
This Court, in People v. Tira,34 ruminated on the juridical concept of "possession" under Section 16, Article III of R.A. No. 6425, as amended, and the evidence necessary to prove the said crime. The same principle applies to prohibited drugs.
In the instant case, appellant failed to present any evidence to rebut the existence of animus possidendi over the illicit drugs and paraphernalia found in his residence. His claim that he was not aware that such illegal items were in his house is insufficient. We have time and again ruled that mere denial cannot prevail over the positive testimony of a witness. Mere denial, just like alibi, is a self-serving negative evidence which cannot be accorded greater evidentiary weight than the declaration of credible witnesses who testify on affirmative matters. As between a categorical testimony that rings of truth on one hand, and a bare denial on the other, the former is generally held to prevail.35 Moreover, his defense of frame-up, as we said, is a common and standard line of defense which is invariably viewed with disfavor, it being capable of easy concoction and difficult to prove.36 Considering that no clear and convincing evidence was presented to prove such allegation, the presumption of regularity in the performance of official duty,37 as well as the principle that findings of the trial court on the credibility of witnesses, especially when affirmed by the CA, are entitled to great respect and are accorded the highest consideration,38 must prevail over the appellant's imputation of ill-motive on the part of the policemen who conducted the search.
The RTC and the CA, in Criminal Case No. 08-1334, correctly meted against appellant the penalty of reclusion perpetua and the
The Court, however, will modify the penalty the CA imposed upon the appellant in Criminal Case No. 08-1344.
Under Section 16, Article III of R.A. No. 6425, as amended, the imposable penalty of possession of less than 200 grams of regulated drug, 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:
Considering that the regulated drug found in the possession of the appellant is only 0.26 grams, the imposable penalty for the crime is prision correccional. Applying the Indeterminate Sentence Law, the appellant should have been sentenced to suffer an indeterminate penalty of from four (4) months and one (1) day of arresto mayor in its medium period, as minimum, to three (3) years of prision correccional in its medium period, as maximum, for violation of Section 16 of R.A. No. 6425, as amended.
In view of the quantity of shabu confiscated in this case, the CA correctly deleted the penalty of fine imposed on appellant, as the second paragraph of Section 20 of R.A. No. 6425, as amended by Section 17 of R.A. No. 7659, provides only for the penalty of imprisonment.
Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, increased the penalty for illegal possession of less than five (5) grams of shabu to imprisonment of twelve (12) years and one (1) day to twenty years and a fine ranging from three hundred thousand (
The same law also changed the penalty for illegal possession of 500 grams or more of marijuana to life imprisonment to death, and a fine ranging from
IN LIGHT OF ALL THE FOREGOING, the Decision appealed from is AFFIRMED with MODIFICATION. Accordingly, judgment is hereby rendered as follows:
(1) In Criminal Case No. 08-1334, the appellant is found GUILTY beyond reasonable doubt of violation of Section 8, Article II of Republic Act No. 6425, as amended, and is hereby SENTENCED to suffer the penalty of reclusion perpetua. He is also ORDERED to pay a fine of
(2) In Criminal Case No. 08-1344, the appellant is hereby found GUILTY beyond reasonable doubt of violation of Section 16, Article III of Republic Act No. 6425, as amended, and is SENTENCED to suffer an indeterminate penalty from Four (4) months and One (1) day of arresto mayor, in its medium period, as minimum to Three (3) years of prision correccional, in its medium period, as maximum. No costs.
Panganiban, Ynares-Santiago, Austria-Martinez, Chico-Nazario, JJ., concur.
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