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SECOND DIVISION

G.R. No. 89542 June 27, 1990

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. BENJAMIN BERNARDO y MARIANO, Accused-Appellant.

SARMIENTO, J.:

The accused appeals from the decision of the trial court, ¹ finding him guilty of violating Section 4, Article II, of the Dangerous Drugs Act, sentencing him to life imprisonment, and to pay P20,000.00 in fine, and to pay the costs.chanroblesvirtualawlibrary chanrobles virtual law library

The evidence for the prosecution shows that at about 9:00 a.m. of September 7, 1988, the Narcotics Command (NARCOM) based in Upper Calarian, Zamboanga City, was alerted by an informant that a certain "Benjie" was peddling marijuana, a prohibited plant, along Cabatangan Road, San Roque, Zamboanga City. Thereupon, Major Cabayacruz, local NARCOM officer-in-charge, directed Sgt. Amos Foncardas to conduct a surveillance. Upon that mandate, Sgt. Foncardas instructed Sgt. Romeo Dayag to pursue a "test-buy" operation.chanroblesvirtualawlibrary chanrobles virtual law library

At or about 5:00 p.m. of the same day, Sgt. Dayag and his civilian informer allegedly proceeded to Cabatangan Road where they found "Benjie". Dayalg's mole supposedly introduced him (Dayag) to "Benjie" and informed the latter that he (Dayag) wished to purchase marijuana. "Benjie" allegedly handed Dayag three cigarettes of marijuana worth P5.00. Thereafter, Dayag and his informant repaired to the NARCOM office where they submitted the three sticks of marijuana for examination at the PC-INP crime laboratory.chanroblesvirtualawlibrary chanrobles virtual law library

The following day, September 8, 1988, the local NARCOM unit formed a team led by Sgt. Foncardas to bust "Benjie". Sgt. Dayag fronted as the group's "poseur-buyer". At about 5:30 p.m., the team proceeded to Cabatangan Road aboard motorcycles. Sgt. Dayag allegedly walked toward a sari-sari store where "Benjie", along with three or four persons, was standing. Sgt. Foncardas and company positioned themselves fifteen meters away from the store.chanroblesvirtualawlibrary chanrobles virtual law library

Dayag allegedly approached "Benjie" and told him that he wanted to buy marijuana worth P10.00. "Benjie" allegedly recognized him as his customer the day before. He allegedly turned over to him six sticks of marijuana. Thereupon, he, Dayag, paid two marked five-peso bills.chanroblesvirtualawlibrary chanrobles virtual law library

Dayag thereafter placed his right hand on his head in a prearranged cue to Sgt. Foncardas, et al. The latter then swooped down on "Benjie" and announced a bust. "Benjie" was bodily searched where the two marked five-peso bills were recovered. Dayag meanwhile passed the six marijuana cigarettes to Foncardas. "Benjie" was brought to the NARCOM headquarters.chanroblesvirtualawlibrary chanrobles virtual law library

He was later Identified as Benjamin Bernardo y Mercado, the accused below, the appellant herein.chanroblesvirtualawlibrary chanrobles virtual law library

Athena Anderson, forensic chemist of the PC-INP crime laboratory, positively Identified the nine sticks of marijuana to be actually, marijuana.chanroblesvirtualawlibrary chanrobles virtual law library

The accused's defense is alibi, i.e., that at or about the tune Sgt. Dayag allegedly went to the sari-sari store, he, together with others, was at a farm, allegedly three kilometers away. The accused said that it was day-to-day routine that he was at the farm where he stayed until 6:00 p.m. Hence, and so he submits, he could not have been near the locus criminis either on September 7 or 8, 1988.chanroblesvirtualawlibrary chanrobles virtual law library

He also testified that at or about 6:00 p.m. of September 8, 1988, he, with his brother, Romeo, and uncle, Benjamin de los Reyes, were watching television, while his mother, Teresita, was minding the store, when four persons on motorcycles arrived. He alleged that without warning, the two manacled him and dragged him toward the motorcycles.chanroblesvirtualawlibrary chanrobles virtual law library

Teresita rushed to the side of his son and held on to him in a tug of war between mother and the military. However, one of them allegedly pointed an armalite rifle at her and then she fainted.chanroblesvirtualawlibrary chanrobles virtual law library

The accused was allegedly brought to the Southern Command (SOUTHCOM) headquarters where he was interrogated. He alleged that he was mauled and told to come across with P5,000.00 in exchange for freedom. He also claimed that he was denied food and water throughout.chanroblesvirtualawlibrary chanrobles virtual law library

The trial judge, as we said, convicted the accused and sentenced him accordingly. In returning the verdict of guilty, His Honor noted that the accused had been positively Identified as the one who sold marijuana to Sgt. Dayag. He also rejected his alibi, that he (the accused-petitioner) was at that time three kilometers away from the scene of the crime, since it was not physically impossible to travel, on foot, therefrom, and in time to ply his illegal trade at the time the authorities claimed they saw him.chanroblesvirtualawlibrary chanrobles virtual law library

The trial judge also relied on the failure of Teresita, the accused's mother, to report the accused's "abduction" on September 8, 1988 by unknown armed men to the authorities, assuming that the accused had been abducted. He observed that neither his brother, Romeo, or his father, Roman, bothered to bring the incident to the police, if there indeed was any irregularity in the NARCOM's actions.chanroblesvirtualawlibrary chanrobles virtual law library

He found no ulterior motive on the part of the accused's captors in making the arrest, more significantly, because of the fact that the very defense admitted that the accused did not know the NARCOM agents who swooped down on him.chanroblesvirtualawlibrary chanrobles virtual law library

He disregarded pleas by the accused that the sticks upon sticks of cannabis found in his person were planted and that he was mauled and blackmailed. If it was true that he was manhandled, so the trial judge noted, why was it, he asked, that he did not complain to the fiscal.chanroblesvirtualawlibrary chanrobles virtual law library

The accused now has it that the trial court, in rendering its verdict, erred. He submits that the evidence for the prosecution was unreliable and unworthy. He posits three questions.chanroblesvirtualawlibrary chanrobles virtual law library

First, he says that he could not have in all likelihood sold marijuana in broad daylight, in a crowded neighborhood, and in full view of the public ("If (he] was really a drug pusher ... [h]e would have asked Sgt. Dayag to go inside. . ." ²)chanrobles virtual law library

He also wonders why Sgt. Dayag did not apprehend him on September 7, 1988, when they first closed the drug deal.chanroblesvirtualawlibrary chanrobles virtual law library

He impugns the decision because the prosecution never presented the informant.chanroblesvirtualawlibrary chanrobles virtual law library

The Court finds that the predicament of the accused hangs on the credibility of the testimony of the poseur-buyer, Sgt. Romeo Dayag. We think that it hinges on it, because: (1) Nobody else, except him, saw marijuana changing hands; Sgt. Dayag's backup did not see it and acted alone on Dayag's cu; ³(2) The informant-who might have witnessed the event-was not made to take the stand. ⁴ chanrobles virtual law library

Sgt. Dayag testified as follows:

xxx xxx xxx chanrobles virtual law library

Q Now, do You remember if on or around September 7,1988, you were on duty? chanrobles virtual law library

A We were in the office at that time.chanroblesvirtualawlibrary chanrobles virtual law library

Q Now, while you were in the office of the Narcom, Zamboanga City on September 7, 1988, at around 3:30 o'clock in the afternoon, will you please tell the Honorable Court what transpired while you were in your office? chanrobles virtual law library

A At that time while I was called by our team Leader, Sgt. Foncardas, he handed to me P5.00 bill for the purpose of "test-buy" operation.chanroblesvirtualawlibrary chanrobles virtual law library

Q Now, after Sgt. Foncardas handed to you the P5.00 bill to conduct a test-buy operation in the vicinity, what did you do? chanrobles virtual law library

A After he handed to me the P5.00 bill, I was together with our civilian informant and we went to Cabatangan, San Roque, this city.chanroblesvirtualawlibrary chanrobles virtual law library

Q Did you actually arrive in San Roque, Cabatangan road together with the civilian informant on that afternoon? chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q Now, when you arrived there together with the civilian informant in San Roque, Cabatangan road, what transpired there? chanrobles virtual law library

A Upon arriving there, we saw the suspect, a certain Benjie.chanroblesvirtualawlibrary chanrobles virtual law library

Q Now, when you and the civilian informant saw the suspect which you said is a certain Benjie, what did you do and the civilian informant who was together with you? chanrobles virtual law library

A We approached the suspect and I was introduced to him.chanroblesvirtualawlibrary chanrobles virtual law library

Q After you were introduced to the suspect, what happened next? chanrobles virtual law library

A After introducing, I asked him if we could buy marijuana tops in the amount of P5.00.chanroblesvirtualawlibrary chanrobles virtual law library

Q After you have asked the accused or the suspect if you could buy marijuana from him, what transpired next? chanrobles virtual law library

A After a minute, I was given three sticks and I handed to him the P5.00.chanroblesvirtualawlibrary chanrobles virtual law library

Q Where did he get the three sticks that was (sic) handed to you? chanrobles virtual law library

A From his pocket.chanroblesvirtualawlibrary chanrobles virtual law library

Q Now, after you were handed the marijuana and you have given to him the P5.00, what happened? chanrobles virtual law library

A We went back to the office together with the civilian informant.chanroblesvirtualawlibrary chanrobles virtual law library

Q And what did you do when you arrived in the scene? chanrobles virtual law library

A I handed the three sticks to Sgt. Foncardas.chanroblesvirtualawlibrarychanrobles virtual law library

Q Now, after Sgt. Foncardas received from you the three sticks of rolled marijuana, what did Sgt. Foncardas do to the three sticks of rolled marijuana? chanrobles virtual law library

A He unrolled the marijuana and he smelled it and according to him that he is going to turn over to the P.C. Crime Laboratory.chanroblesvirtualawlibrary chanrobles virtual law library

xxx xxx xxx chanrobles virtual law library

Q Now, in the afternoon of September 8,1988, were you able to actually arrive in the place in the vicinity of San Roque, Cabatangan? chanrobles virtual law library

A At around six o'clock already.chanroblesvirtualawlibrary chanrobles virtual law library

Q And who were your companions during that time, if you have any? chanrobles virtual law library

A My companions,--Sgt. Foncardas, our Team Leader; Sgt. Pedro Mamuad and...chanroblesvirtualawlibrary chanrobles virtual law library

Q Upon arrival at the place, what did You yourself do and what did your companions do also? chanrobles virtual law library

A Upon arriving in the vicinity, I was the one who went nearer while my other companions stayed a little further.chanroblesvirtualawlibrary chanrobles virtual law library

Q When you say you were the only one who went nearer, to whom did you went (sic) nearer? chanrobles virtual law library

A To the suspect.chanroblesvirtualawlibrary chanrobles virtual law library

Q And because you went near the suspect, were you able to talk with the suspect? chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q And what did you and the suspect were talking about? (sic) chanrobles virtual law library

A I talked to the suspect if I can buy marijuana.chanroblesvirtualawlibrary chanrobles virtual law library

Q And what is his answer? chanrobles virtual law library

A He did not answer anymore, but instead he went immediately to get the marijuana.chanroblesvirtualawlibrary chanrobles virtual law library

Q Now, in what form that the marijuana was given to you by the accused? chanrobles virtual law library

A It is rolled, six pieces.chanroblesvirtualawlibrary chanrobles virtual law library

Q Now, after you smell (sic) it, what did you do next? chanrobles virtual law library

A After I smell (sic) it, I handed to him the P10.00.chanroblesvirtualawlibrary chanrobles virtual law library

Q Did the accused receive the money from you, the two P5.00 bills? chanrobles virtual law library

A Yes, he received it.chanroblesvirtualawlibrary chanrobles virtual law library

Q When the six sticks rolled of dried marijuana were already in your hands, and the accused, has already received the two P5.00 bills used in the buy-bust operation, what did you do next? chanrobles virtual law library

A After that I gave signal to my companions.chanroblesvirtualawlibrary chanrobles virtual law library

Q In what manner did you give the signal to your companions? chanrobles virtual law library

A I placed my right hand on top of my head.chanroblesvirtualawlibrary chanrobles virtual law library

Q After you made that signal, tell the Honorable court what transpired next? chanrobles virtual law library

A After I made the signal, my companions rushed up.chanroblesvirtualawlibrary chanrobles virtual law library

Q When you say rushed, as to where did they rush up? chanrobles virtual law library

A To the place where were talking to the suspect.chanroblesvirtualawlibrary chanrobles virtual law library

Q When they went to the place where you and the suspect were standing or talking, what happened next? chanrobles virtual law library

A They introduced themselves that they are Narcom agents.chanroblesvirtualawlibrary chanrobles virtual law library

Q And after they have introduced themselves as Narcom agents, what transpired next? chanrobles virtual law library

A The marked money was recovered from his right hand.chanroblesvirtualawlibrary chanrobles virtual law library

Q And who recovered the marked money from the right hand of the suspect? chanrobles virtual law library

A Sgt. Foncardas.chanroblesvirtualawlibrary chanrobles virtual law library

Q Now, what about the six sticks of rolled dried marijuana which you obtained from the accused, what did you do with the six sticks rolled dried marijuana? chanrobles virtual law library

A I turned it over to our Team Leader.chanroblesvirtualawlibrary chanrobles virtual law library

Q Who was your Team Leader? chanrobles virtual law library

A Sgt. Foncardas.chanroblesvirtualawlibrary chanrobles virtual law library

Q Now, after your team was able to arrest the suspect, what happened next,-what did you do with the suspect as well as the two P5.00 bills and the six sticks of rolled marijuana? chanrobles virtual law library

A We conducted him to the office. ⁵ chanrobles virtual law library

xxx xxx xxx

We find his recital straightforward, spontaneous, and convincing. Moreover, the judge below had accepted his testimony, and who but a judge is in a better position to measure the credibility and demeanor of a witness. It has been held indeed in a long line of cases that in matters of credibility, this court leaves judges ample discretion, having personally seen the witness' deportment and having personally heard his account. ⁶ As in those cases, we defer to the finding--as to Sgt. Romeo Dayag's testimony--of His Honor in this case. Accordingly, we also affirm His Honor's decision.chanroblesvirtualawlibrary chanrobles virtual law library

The accused's insistence that no dope peddler can pursue his trade in a public place holds, to our mind, no water. The exchange of marijuana (rolled up in sticks) from hand to hand and the passing of money from palm to palm are done in quick movements, and in swift succession. Furthermore, the transaction took place at 6:00 p.m. ⁷ and not 3:00 p.m. as the accused would have it, ⁸ and the twilight provided a good cover.chanroblesvirtualawlibrary chanrobles virtual law library

The fact that Sgt. Dayag did not act the first time (September 7, 1988) he saw the accused is not fatal to the prosecution. As the Solicitor General submits, "Sgt. Dayag wanted to avoid being suspected of planting evidence." ⁹chanrobles virtual law library

The fact that the prosecution failed to produce the NARCOM's informant in court is of no moment. He is not, so the accused puts it, the "best witness" ¹⁰ to establish the fact that a "test-buy" operation had indeed occurred among the accused, Sgt. Dayag, and the latter's informer. Dayag himself testified that it happened, and as we observed, he, Dayag, positively Identified the accused as the drug pusher selling his wares along Cabatangan Road. In our considered opinion, Dayag has given the prosecution the evidence they needed to pin the accused on a drugs rap, and to build a case against him for pushing cannabis sativa.chanroblesvirtualawlibrary chanrobles virtual law library

The defendant, moreover, has not successfully attributed any motive against the NARCOM or Dayag, and why either should testify falsely against him.chanroblesvirtualawlibrary chanrobles virtual law library

The court finds no more necessity in dwelling on the accused's other charges, i.e., that the authorities had intimidated him or had set him up. We are convinced that based on the evidence on record, he is guilty as charged.chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, the decision appealed from is AFFIRMED in toto. No costs.chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED.