PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. RAUL GERONA Y GOC-ONG, GREGORIO DIANO, JR. Y ARCAYAN, AND CONCORDIO BIHAG, ALIAS “CORDIO” (AT-LARGE), ACCUSED-APPELLANTS.

Raul Gerona, Gregorio Diano, Jr. and Concordio Bihag, alias
“Cordio” were charged before the Regional Trial Court of Cebu, Branch
14, with violating Section 4, Article II in relation to Section 21, Article IV
of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972,
as amended, in an information which reads as follows:

“That on or about the 28th day of April, 1990, at about 11:00
A.M., more or less, in the City of Cebu, Philippines, and within the
jurisdiction of this Honorable Court,
the said accused, conniving and confederating together and mutually helping
with one another, with deliberate intent, did then and there deliver, sell and
give away one bundle of marijuana dried leaves more or less 50 grams wrapped in
a newspaper, a prohibited drug,
to a person who posted himself as
buyer without authority of law.

“CONTRARY TO LAW.” (Rollo,
p. 6.)

When arraigned, accused Gerona and Diano entered a plea of not guilty. Accused Bihag, who has evaded arrest, has
not been arraigned and remains at large. Trial on the merits ensued with respect to accused Gerona and Diano. Subsequently, the trial court rendered a
decision finding the two accused guilty of the crime charged. The dispositive portion of the trial court’s
decision states:

“WHEREFORE, judgment is hereby rendered finding the two
accused Raul Gerona y Goc-ong and Gregorio Diano, Jr. y Arcayan, guilty beyond
reasonable doubt of having violated Section 4, Article II in relation to
Section 21, Article IV of Republic Act No. 6425 as amended, and they are hereby
sentenced to reclusion perpetua or life imprisonment (sic), and a fine of P20,000.00, without subsidiary
imprisonment in case of insolvency, and to pay the costs.

“Considering, however, that both are still comparatively young
— Raul Gerona is only 24 years old while Gregorio Diano, Jr. is only 21 — and
considering moreover that the present indictment is their first offense, the
Court feels that they should be given a second chance at life. The Court accordingly recommends that executive clemency be extended to them
after they shall have served at least ten years of their sentences in prison.

“SO ORDERED.”
(Rollo, p. 25)

Both accused Gerona and Diano initially appealed the judgment of
conviction but later on, accused Gerona filed a motion to withdraw appeal which
was granted by this Court in a Resolution dated May 26, 1993 (Rollo, pp. 87-88).

The antecedent facts, as stated by the trial court, are as
follows:

“On April 28, 1990, having confirmed through earlier
surveillances that a notorious marijuana
distributor or seller named Concordio Bihag, alias ‘Cordio,’ was the
source of considerable trade or traffic of dried marijuana leaves at Pit-os,
Talamban, Cebu City through his ‘boys’ or ‘runners,’ among whom were a certain
Alo, a certain Boy, a certain
Tiwa, and the two accused in this case, Raul Gerona and Gregorio Diano, Jr.,
Lt. Emmanuel M. Ughoc, officer-in-charge of the 7th Narcotic Regional Unit,
Cebu City, constituted into a buy
bust operation, S/Sgt. Ibrahim
Mohammadshaid, Sgt. Ricardo Inding and CIC Teodosio Rosaroso of said unit for
the purpose of arresting the said Concordio Bihag and his marijuana
‘boys’ or ‘runners.’ Designated by Lt. Ughoc as ‘poseur buyer’ was Sgt. Ricardo
Inding who put on the appearance of a drug dependent or user. Earlier on, Sgt. Inding had placed on
surveillance Concordio Bihag and his marijuana ‘boys’ or ‘runners.’ In these
previous surveillances, Inding had observed that Bihag did not deal directly
with prospective buyers – he invariably dealt via his ‘boys’ or ‘runners’: Alo, Tiwa, Boy and the two accused herein Raul
Gerona and Gregorio Diano, Jr. Inding
first befriended Alo, Tiwa and Boy during his first surveillance. To these three Inding indicated his desire
to buy marijuana in volumes or big quantities directly from the marijuana owner
or the ‘big boss’ himself, Concordio Bihag. Inding told these three: ‘Gusto unta ko nga mokuha ug volume mga
marijuana ug dili ko gusto nga moagi pa ako ug runner. Gusto ko nga modirekta.’ Translation: ‘I should like to buy marijuana in volumes
or big quantities, and I don’t want to buy through peddlers or runners. I want to buy directly from the owner or
‘big boss’ himself.’ Alo, Boy and Tiwa replied that ‘It is our secret’ (i.e.,
they wanted either to keep their operations in secret, or to conceal the
identity of their ‘big boss’). Inding
observed, though, that when a buyer goes to Concordio’s runner ‘I (Inding)
noticed only that the runners will give the money to Concordio Bihag and
thereafter Concordio Bihag will disappear and minutes later he will come back
and give to the runners some bundles of marijuana.’ It was from these ‘boys’ or
‘runners’ that Inding learned Concordio Bihag’s name. (T.S.N. of September 4, 1990, p. 17).

“On his second surveillance on April 26, 1990 Inding did not
find Tiwa, Alo and Boy at the store. So
he looked for these three at the basketball court at Pit-os, supposing he would
find them there. He did not find them
at the basketball court, either. Instead, he found in the basketball court the two accused Raul Gerona
and Gregorio Diano, Jr. playing basketball with other teenagers. He joined their game and befriended Raul
Gerona and Gregorio Diano, Jr. or ‘Greg.’ He asked these two where Alo, Tiwa
and Boy were, telling these two that he had a transaction with Alo, Tiwa and
Boy. But Gerona and Diano asked him
what his transaction to the three was. ‘So I informed them that I want to get some marijuana dried leaves.’ And
they said ‘Kami na lang bay kay mao ra man gihapon kanang ilang kuhaon nga
marijuana parehas ra man ang among presyo.’ Translation: ‘Just buy from us,
friend, because the marijuana they will get from Bihag we can also sell to you
at the same price.’ Inding saw Bihag in a waiting shed in Pit-os some 100
meters from the basketball court. On
that date, he bought P100.00 worth of marijuana from Gerona, who got it from
Bihag.

“Having indeed ascertained or confirmed that Concordio Bihag
was the source of marijuana dried leaves in Pit-os, and that Bihag was assisted
in this nefarious business by his ‘boys’ or ‘runners,’ on the late morning of
April 28, 1990 S/Sgt. Ibrahim Mohammadshaid, Sgt. Ricardo Inding, and CIC
Teodosio Rosaroso and four civilian agents, soon after their constitution into
a ‘buy-bust’ team, went to Pit-os on board a mini-cruiser to catch or entrap
Concordio Bihag and his ‘boys’ or ‘runners’ who could be caught in the act of
selling marijuana. The members of the
team got off some 200 meters away from the waiting shed where in previous
surveillances Inding had observed Bihag to have been transacting business
through his ‘boys’ or ‘runners.’ Inding then proceeded to the waiting shed
while S/Sgt. Mohammadshaid and CIC Rosaroso positioned themselves some 20
meters away. (CIC Rosaroso knew Bihag,
and Bihag knew Rosaroso, some years before).

“Not long after he had reached the waiting shed where Bihag
was sitting on a bench, Inding gave the pre-arranged signal-(he got a
handkerchief from his pocket and waved it) – that he had consummated the sale
or delivery of marijuana leaves. Mohammadshaid and Rosaroso rushed forward. Upon seeing the approaching lawmen, especially Rosaroso whom he
(Bihag) had previously known, Bihag scampered away, with Rosaroso in
pursuit. Inding then grabbed Gerona
while Mohammadshaid grabbed Diano.

“According to Inding, just before Mohammadshaid and Rosaroso
rushed forward in response to his pre-arranged signal, he was approached by the
accused Raul Gerona and Gregorio Diano, Jr., to whom he expressed his desire to
buy dried marijuana leaves worth P100.00. Gerona asked for the money (i.e. marked money) and, on receiving it,
gave it to his (Gerona’s) co-accused Diano, who thereupon approached the third
accused in this case, Concordio Bihag, who was then seated in a bench in the
waiting shed, and handed Bihag the money. Bihag then got a bundle of marijuana leaves wrapped in a newspaper
placed near him and gave it to Diano. Upon receiving the bundle Diano delivered it to Gerona who in turn
handed it to Inding.

“Inding categorically declared that he received from Gerona
and Diana the bundle of dried marijuana leaves weighing 50 grams (Exhibit ‘C’). The raiding team also recovered 200 grams of
dried marijuana leaves wrapped in a paper (Exhibit ‘D’) on the bench occupied
by Bihag.

“Lt. Myrna P. Areola, PC-Criminal Laboratory forensic chemist
testified that the substance found in Exhibit ‘C’ and ‘D’ were positive for
marijuana.

“In exculpation, the accused Raul Gerona and Gregorio Diano
testified that on the morning of April 28, 1990 they were playing basketball in
the basketball court at Pit-os when overcame by thirst, they went to the store
of Ruben Miñoza, Jr. to buy soft drinks. When they reached the store they found Concordio Bihag there. They
bought some soft drinks and while taking the soft drinks, Sgt. Inding arrived
and asked for Bihag. They pointed to
Bihag inside. Inding then called for Bihag
and the latter came out with two packs of dried marijuana leaves which he
handed to Inding. After taking delivery
of the two packs, Inding gave P100.00 to Bihag.

“Inding opened the pack and smelled its contents. Gerona and Diano were also asked to smell
the pack, and they did. Their
companions in the store likewise smelled the contents of the packs.

“Inding thereafter put back the contents into the pack, got a
handkerchief from his pocket, and wiped his face with it. Moments later, Inding’s fellow police
officers rushed into the store. Inding
took hold of Bihag, but as Bihag was bigger than Inding, Bihag succeeded in
shaking himself free from Inding’s hold, and in scampering away. Gerona and Diano were then rounded up by the
lawmen, along with Bihag’s other ‘boys’ or ‘runners,’ Eper, Boy, Alo and Tiwa.

“Since they failed to get their principal quarry the members
of the raiding team then made Gerona and Diano board their service vehicle,
took off towards Bacayan, Talamban, and asked Gerona and Diano to point to the
house of Bihag there.

“The members of the team however did not find Bihag in his
house. So they brought Gerona and
Diano, and Bihag’s other ‘boys’ or ‘runners’ to the NARCOM headquarters. These other ‘boys’ or ‘runners’ were
nonetheless released on the same day, April 28, 1990.

“Gerona and Diano alleged that they protested their arrest by
the members of the raiding team, but Sgt. Inding told them that they would be
simply utilized as witnesses. Both
insisted that they did not commit the crime imputed to them.

“Agustin Padayao, who claimed to be an uncle by affinity of
the third accused, Concordio Bihag, sought to corroborate Gerona and Diano’s
testimonies” (Rollo, pp. 19-22).

Accused-appellant Diano is now before Us seeking the reversal of
the judgment of conviction rendered by the trial court. In his Brief, he made the following
assignment of errors:

“I. THE COURT-A-QUO ERRED IN NOT GIVING CREDENCE TO THE TESTIMONIES OF
ACCUSED GREGORIO DIANO, JR., RAUL GERONA AND WITNESS AGUSTIN PADAYAO.

“II. THE COURT-A-QUO ERRED IN GIVING TO (SIC) MUCH WEIGHT TO THE TESTIMONY OF
SGT. RICARDO INDING.”

From the foregoing, it is at once apparent that the only issue
involved herein is the credibility of witnesses.

Once again, the present appeal affords Us the occasion to
reiterate the well-entrenched rule that findings of the trial court on the
issue of credibility of the witnesses’ testimonies are accorded great weight
and respect on appeal because the trial judge has first hand opportunity to
examine and observe the conduct and demeanor of the witnesses, while testifying
in court (People vs. Marcos, 185 SCRA 154 [1990], citing People vs. Rodriguez,
172 SCRA 742 [1989], People vs. Tejada, 170 SCRA 497 [1989], People vs.
Abonada, 169 SCRA 530 [1989], People vs. Turla, 167 SCRA 278 [1988], People vs.
Aboga, 147 SCRA 404 [1987]). Unless it
be clearly shown that the trial court had overlooked or disregarded arbitrarily
the facts and circumstances of significance in the case (People vs. Simbulan,
214 SCRA 537 [1992]), appellate courts are wary of disturbing the credence, or
lack of it, accorded by the trial court to the testimony of witnesses. In the present case, there is nothing on
record to warrant deviation from the general rule. The instant appeal must therefore fail.

Accused-appellant Diano implores this Court to give more weight
to his testimony and that of his co-accused Gerona and their witness Padayao
over the testimonies of the prosecution witnesses particularly the narration of
events by Sgt. Inding. Appellant
contends that the version of the prosecution as regards the participation of
the two accused in the buy-bust operation is highly improbable coupled with the
fact that not a single stick of marijuana was found in the possession of either
accused.

Appellant, however, was not indicted for possession of the
prohibited merchandise. On the
contrary, he was charged and convicted under the provisions of Section 4,
Article II of Republic Act No. 6425 in relation to Section 21, Article IV of
the same law as a broker in the sale of marijuana. The express wordings of the above-stated provisions are as
follows:

“Sec. 4. Sale,
Administration, Delivery, Distribution and Transportation of Prohibited Drugs.
– The penalty of life imprisonment to death and a fine ranging from twenty
thousand to thirty thousand pesos shall be imposed upon any person who, unless
authorized by law, shall sell, administer, deliver, give away to
another, distribute, dispatch in transit or transport any prohibited drug,
or shall act as a broker in any of such transactions. If the victim of the offense is a minor, or
should a prohibited drug involved in any offense under this Section be the
proximate cause of the death of a victim thereof, the maximum penalty herein
provided shall be imposed (underscoring supplied).

x           x x

“Sec. 21. Attempt and
Conspiracy. – The same penalty prescribed by this Act for the commission of the
offense shall be imposed in case of any attempt or conspiracy to commit the same in the following
cases:

a)     
Importation of dangerous drugs;

b)     
Sale,
administration, delivery, distribution and transportation of
dangerous drugs;

c)     
Maintenance of a den, dive or resort for prohibited drug
users;

d)     
Manufacture of dangerous drugs; and

e)     
Cultivation or culture of plants which are sources of
prohibited drugs.”

The wordings of the law clearly negate the theory of
improbability espoused by accused-appellant Diano. The facts as recited in Sgt. Inding’s testimony is consistent
with the charge leveled against the two accused as brokers or commission agents
in the sale of marijuana by confederating and mutually helping each other in
the sale and delivery of one bundle of dried marijuana leaves. Moreover, the version of the prosecution
fits the modus operandi of the third accused Bihag. Accused Bihag is known to conduct his
business of selling marijuana through the use of his “boys” or
“runners”. These “boys”
or “runners” act as the middlemen between Bihag and the buyer, such
that they deal directly with the latter and get their commission from the
proceeds of the sale. Accused Gerona
and Diano were just two of Bihag’s runners. There is therefore nothing surprising in Sgt. Inding’s declaration that
the marked money and the marijuana passed from one hand to another (from Inding
to Gerona to Diano to Bihag, and vice versa) in the course of the transaction.

In the light of what the prosecution established about Bihag’s
operation, it is far more difficult to lend credence to the proposition of the
defense that the participation of the two accused to the buy-bust operation was
limited to pointing out where Bihag was to Sgt. Inding, and after the
consummation of the sale between Sgt. Inding and Bihag, to smelling the
contents of the pack containing the dried marijuana leaves. It is inconsistent with ordinary human
experience for a buyer of prohibited drugs to explicitly request everyone
present at the store to smell the merchandise right after the consummation of
what supposedly was a discreet and illicit transaction.

Furthermore, appellant’s presence during the negotiation and
actual delivery, indicates a conspiracy or common purpose with the other
accused to sell marijuana (People vs. Natipravat, 145 SCRA 483 [1986]), his
protestations to the contrary notwithstanding.

Thus, as between a mere denial of the accused-appellant and the
positive identification and detailed declarations of the prosecution witnesses,
the trial court committed no error in according greater weight to the latter
(People vs. Marcos, 185 SCRA 154 [1990] citing People vs. Melgar, 157 SCRA 718
[1988], People vs. Marilao, 177 SCRA 271 [1989]).

Additionally, there is nothing in the record to suggest that the
police officers were compelled by any ulterior motive or ill-will in arresting or testifying against the
accused other than to accomplish their mission (People vs. Como, 202 SCRA 200
[1991]). Courts generally give full
faith and credit to police officers for they are presumed to have performed
their duties in a regular manner in the absence of proof to the contrary (Rule
131, Section 5 (m), Rules of Court; People vs. Marcos, supra, citing People vs. Lamog et al., 172 SCRA 342
[1989], People vs. Gamayon, 121 SCRA 642 [1983], People vs. Policarpio, 158 SCRA 85
[1988], People vs. Natipravat, supra; People vs. De Jesus, 145 SCRA 52 [1986]; People vs. Khan, 161
SCRA 406 [1988]). Finally appellant’s
co-accused, Raul Gerona withdrew his appeal opting to avail of parole which is
indicative of the veracity of the offense charged (See People vs. Flores, 23
SCRA 309 [1968]).

All told, we find
no reversible error in the judgment of conviction.

Regarding the imposition of the appropriate penalty, however, the
Court would like to remind the trial courts to be more careful in imposing the
proper penalty in accordance with the strict letter of the law. The penalty prescribed by Section 4, Article
II of Republic Act No. 6425 for the commission of the described offense is life
imprisonment to death and a fine ranging from twenty to thirty thousand pesos,
and not reclusion perpetua. Life imprisonment and reclusion perpetua are two distinct
penalties and are not interchangeable for the latter carries with it the accessory penalties enumerated in Article 41
of the Revised Penal Code (People vs. Blas, 209 SCRA 339 [1992]; People vs.
Marcos, 212 SCRA 748 [1992]). Furthermore, reclusion perpetua entails imprisonment for at least
thirty (30) years after which the convict becomes eligible for pardon; whereas
life imprisonment does not appear to have any definite extent or duration
(People vs. Baguio, 196 SCRA 459 [1991]).

WHEREFORE, the judgment appealed is hereby AFFIRMED with
the MODIFICATION of the imposable penalty which is life imprisonment and a fine
of TWENTY THOUSAND PESOS (P20,000.00) instead of reclusion perpetua.

SO ORDERED.

Feliciano, (Chairman), Romero, Melo, and Vitug, JJ., concur.