THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ROMEO BAY Y ATIENZA @ OMENG, ACCUSED-APPELLANT.

On the basis of a “buy-bust” operation led by Cpl. Tomas
Abatayo as team leader and Pat. Ronnie Miranda and Pfc. Eduardo Cabria, as
members, Romeo Bay y Atienza was arrested and charged with violation of the
Dangerous Drugs Act in Criminal Case No. 91-0141 before the Regional Trial
Court of the National Capital Judicial Region (Branch 113, Pasay City), under
the following information:

That on or about the 23rd day of January, 1991, in Pasay, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, ROMEO BAY y ATIENZA alias OMENG, without authority of law,
did then and there willfully, unlawfully sell and deliver to another
Methamphetamine Hydrochloride (shabu), a regulated drug. (p. 13, Rollo.)

After trial, following a plea of not guilty entered upon
arraignment, the lower court, on July 23, 1991, adjudged the accused guilty
beyond reasonable doubt of the crime as charged. Pertinently, the decision reads:

Before this Court is one of the many cases of selling and
delivering of methamphetamine hydrochloride or shabu. The three police officers were so emphatic about the details of
the incident when they were narrating them. The recognition of the accused as the seller of shabu was unflinchingly
established by this three police officers whose credibility the defense failed
to assail. Neither has the accused or
his witness-wife convincingly shown any ill-motive on the part of the
prosecution witnesses to falsely testify against him. The defense of the accused, which is alibi, deserves little, if
at all, consideration. To be believed
alibi must be supported by the most convincing evidence as it is an inherently
weak though paradoxically volatile, if allowed
to go unchecked, human argument can easily be fabricated to suit the ends of
those who seek its recourse. Accordingly,
this Court finds the accused’s refuge in alibi as unavailing against the
positive identification of the accused by the three police officers. Furthermore, when the accused’s alibi is
supported only by the testimony of his wife, the alibi, loses evidentiary
weight. Accused presented another
witness, his neighbor, but it did not say anything about the incident in
question. It even affirmed the presence
of the police officers performing their duties in said place.

From the record of this case it can be said that the three
policemen showed no hostility but only an interest in bringing the accused
before the Court of Justice to answer for his grave offense in selling
drug. The accused testified that these
police officers demanded money for his release but this is not substantiated to
merit any consideration.

This Court is aware of the fact that the use of poseur-buyer by
narcotic agents as a means of apprehending prohibited drug violators is
susceptible to abuse (People vs. Juan de la Cruz, G.R. No. 83260, April 18,
1990; People vs. Fernando, 145 SCRA 151). However, in the case at bar, there is convincing proof that such abuse
is not present. The testimony of Pat.
Cabria — the poseur-buyer is corroborated by two other police officers who
took part in the “buy-bust” operation that led to the entrapment of
the accused.

WHEREFORE, the accused is found guilty beyond reasonable doubt of
the charge in the information quoted above and is hereby sentenced to an
imprisonment of RECLUSION PERPETUA and a fine of P20,000.00, without subsidiary
imprisonment in case of insolvency. The
shabu and other articles are forfeited in favor of the government. The branch clerk is hereby directed to
surrender the same to the Dangerous Drug Board for proper disposition.

SO ORDERED. (pp. 18-19,
Rollo.)

The Solicitor General, in his brief, gave a vivid picture of the
antecedent facts, to wit:

On January 23, 1991, at about 9:00 o’clock in the evening, an
informant by the name of Gina appeared at the Pasay City Police Station and
gave the information that a certain Omeng, the appellant in this case, residing
at No. 14-I Reyes Street, Pasay City, was selling prohibited drugs. A team was immediately formed to conduct a
“buy-bust” operation. The
team was composed of Cpl. Tomas Abatayo as team leader and Pat. Ronnie Miranda
and Pfc. Eduardo Cabria as members. Pfc. Cabria was designated as “poseur-buyer” and was given a
P100-bill to be used as “buy-bust” money.

The team, together with the informant, went to the place indicated
by the informant. Pfc. Cabria and Gina
proceeded to the house of appellant. After introducing Pfc. Cabria to appellant, Gina left. Pfc. Cabria told appellant that he needed a
“panggamit.” Appellant asked him how much he needed. Pfc. Cabria replied, “One Peso,”
meaning P100.00. Pfc. Cabria handed the
P100?bill to appellant who, in turn, gave him one transparent plastic bag
which appellant took from his house. At
this juncture, Pfc. Cabria gave the pre?arranged signal. His companions came and introduced themselves
as police officers. Appellant pushed
Pfc. Cabria and was about to run to his room but Pat. Miranda was able to
restrain him by his waistband. Pat.
Miranda frisked appellant and recovered the “buy-bust” money inside
the right pocket of appellant. While
inside the house of appellant, the police officers saw several pieces of
aluminum foil (Exhibit D-1), improvised burners and tooters (Exhibit D-3 and
D-4) on the center table.

Appellant was brought to
the police station for investigation (pp. 7-11, tsn, May 8, 1991; pp.
2-4, tsn, May 23, 1991). The plastic
bag confiscated from appellant was submitted to the National Bureau of
Investigation for examination. The
contents thereof were verified to be methamphetamine
hydrochloride (shabu) (p. 4, tsn, May 8, 1991). [pp. 79-81, Rollo.]

On the other hand, the accused narrated a different version of
what allegedly transpired:

On the night of January 23, 1991, herein appellant Romeo Bay, then
gainfully employed as a delivery man in the Marina Port Services, Inc., was at
his modest home at #14 I. Reyes St., Pasay City. His home, consisting of one room at the ground floor and one room
upstairs, which has no door and which serves as bedroom, was being rented from
one Francisco Basco. It is a part of
the house of Basco. It is a poor man’s
home as Romeo Bay, while employed, cannot be considered rich. At about 9:00 o’clock in the evening, Romeo
Bay was at their upstairs bedroom reading komiks when he heard a
commotion downstairs. He went down, but
he was met at the narrow stairs by armed police officers who pushed him back to
his bed. The police asked for his name
and appellant was told that they, the police, were looking for a certain Gil. There were six policemen in all, four of
whom went upstairs while two remained downstairs. When appellant asked for a search warrant, he was told that
“our gun” is their warrant (t.s.n. June 19, 1991, p. 4). The policemen then proceeded to search the
place. They were looking for the
personal things of Gil. Not finding any
of such things and not finding Gil either, the policemen dragged appellant out
of the house and to the place where Gil kept his fighting cocks. The appellant is the caretaker of the cocks
and for his services, Gil paid appellant’s electric bills. Gil was known in the neighborhood as
pusher. The policemen kept asking
appellant where Gil hid personal things and when appellant insisted that he
knew nothing about those things, he was brought to the police precinct and was
told that he would be charged for using drugs. Appellant was asked to call up Gil by telephone so that he can be
released from jail. The policemen
demanded that appellant produce Ten Thousand (P10,000.00) Pesos “or else
they will pursue the charge against me” (T.S.N. June 19, 1991, p. 4). Appellant was unable to give the amount
demanded. He was never released from
detention since the time he was brought to the precinct. (pp. 40-41, Rollo.)

Maintaining his position that he is innocent of the crime imputed to him, the accused, in this appeal,
assigns the following alleged errors:

I

THE VERDICT OF
CONVICTION WAS THE RESULT OF PASSION AND PREJUDICE, ARRIVED AT WITHOUT SCRUTINY
OF THE EVIDENCE FOR THE PROSECUTION.

II

THE PROSECUTION THEORY OF A BUY-BUST OPERATION IS WHOLLY AND
INHERENTLY INCREDIBLE.

III

THE TESTIMONIES OF TWO VITAL PROSECUTION POLICE-WITNESSES ARE
PALPABLY INCREDIBLE.

IV

THE TESTIMONIES OF THE
PROSECUTION WITNESSES ON MATERIAL AND VITAL POINTS ARE REPLETE WITH
IRRECONCILABLE INCONSISTENCIES.

V

THE TRIAL COURT
COMPLETELY RELIED UPON THE PRESUMPTION OF REGULARITY OF PERFORMANCE OF OFFICIAL
DUTIES DISREGARDING THE CONSTITUTIONAL
PRESUMPTION OF INNOCENCE.

VI

ASSUMING, WITHOUT
CONCEDING, THAT THERE WAS A SALE OF “SHABU”, THE TRANSACTION TOOK
PLACE BECAUSE OF INSTIGATION, NOT BY REASON OF ENTRAPMENT. (pp. 39-40, Rollo.)

This Court had occasion to observe in People vs. Ale (145
SCRA 50 [1986]):

Judges trying narcotics cases are often placed in a non-enviable
predicament. The threat posed by drugs
against human dignity and the integrity of society is malevolent and
incessant. Courts should not hamper, in
any way, the dedicated although sometimes puny efforts to stem the giant
menace. Courts should not unwittingly
tie down the hands of narcotic agents whose work is already difficult and
dangerous enough without legal and procedural obstacles to successful
prosecutions.

At the same time, we cannot close our eyes to the many reports of
evidence being planted on unwary persons either for extorting money or exacting
personal vengeance. By the very nature
of anti-narcotics operations, the need for entrapment procedures, the use of
shady characters as informants, the ease with which sticks of marijuana or
grams of heroin can be planted in pockets or hands of unsuspecting provincial
hicks, and the secrecy that inevitably shrouds all drug deals, the possibility
of abuse is great. Courts must also be
extra vigilant in trying drug charges lest an innocent person is made to suffer
the unusually severe penalties for drug offenses. (at pp. 58-59.)

Accordingly, it is in this light that we have endeavored to
carefully examine the entire records of the case, scrutinized the testimony of
both the prosecution and the defense witnesses, and analyzed the contentions of
the accused.

The first five assigned errors are interrelated. They refer to the credibility of the
prosecution witnesses, Cpl. Tomas Abatayo, Pat. Ronnie Miranda, and Pfc.
Eduardo Cabria of the ISOG Drug Enforcement Section, Pasay City Police
Station. To underscore their lack of
credibility, accused-appellant points to the following inconsistencies and
contradictions in their testimony:

Cabrea testified that the One Hundred Peso Bill with serial number
QZ 056633 which was used as buy-bust money came from their “Intelligence
Fund” (T.S.N. May 8, 1991, p. 8) and that he (Cabrea) officially received
the same from Police Captain Antonio Evangelista (T.S.N. May 27, 1991, p.
3). Patrolman Miranda, the alleged retriever
of the money from appellant,
categorically stated, when asked who owns the bust money, that “IT CAME
FROM CPL. ABATAYO, OUR TEAM LEADER” (t.s.n. May 23, 1991, p. 6). But, Abatayo virtually stated that he KNEW
NOTHING ABOUT THE BUY-BUST MONEY. Thus:

“COURT :
Alright. What money did you use in the
buy-bust operation?

“WITNESS:

A :  It was Pfc. Cabria who prepared all the things that will be used in
the operation. (T.S.N. June 7, 1991, p.
3).”

Just as importantly, and on the matter of the alleged registration
of the buy-bust money in the logbook, Pat. Miranda testified on direct
examination that it was Pfc. Cabrea who made the registration thus:

“Q:  Do you know who
registered the buy bust money in the logbook?

A:   Yes sir, Pfc. Cabrea (T.S.N. May 23, 1991, p. 5).”

But, when Cabrea was recalled to the
witness stand precisely for the purpose of producing and identifying the
logbook on which the registration was allegedly made (T.S.N. May 27, 1991), he
categorically stated that it was Pfc. Palomar who made the entry in the logbook
regarding the buy-bust money.

Still another point. The
alleged poseur-buyer, Pfc. Cabrea repeatedly said in his testimony that the
signal by which to show that the transaction is finished is by HIS SCRATCHING
OF HIS HEAD. But the very TEAM LEADER
of the operation, P. Cpl. Abatayo just repeatedly said that the signal was to
be a WAVING OF THE HAND. (pp. 51-52,
Rollo.)

The above inconsistencies are, in our view, not substantial
enough to affect the weight of the prosecution evidence as to how the crime
imputed to accused-appellant was committed. As we have repeatedly held, minor contradictions are to be expected but
must be disregarded if they do not affect the basic credibility of the evidence
as a whole. (People vs. Mariano,
191 SCRA 136 [1990]).

Moreover, in the prosecution of the offense of illegal sale of
prohibited drugs, what is material is the proof that the transaction or sale
transpired, coupled with the presentation in court of the corpus delicti
as evidence. Thus, in People vs.
Macuto (170 SCRA 762 [1989]), we stressed that the commission of illegal
sale of marijuana requires merely the consummation of the transaction in regard
to the sale. How the marked money was
recovered is of no great significance in establishing the guilt of the
accused. What is important is the fact
that the poseur-buyer received the marijuana from the accused and the contents
were presented as evidence in court.

In the case at bar, there is no doubt from the records that
accused-appellant was caught in the very act of selling “shabu”, a prohibited
drug. Pfc. Cabria, the prosecution
witness who acted as poseur-buyer categorically pinpointed accused-appellant as
the person who sold to him one transparent plastic bag of “shabu”. When asked to testify on what transpired in
January 23, 1991, he declared:

Q: You mentioned that you are Pfc., where were you assigned on January 23,
1991?

A:    I
was assigned with the ISOG, Drug Enforcement Section.

Q:   Where
is this located?

A:    At
the Pasay City Police Station.

Q:   As
such member, what are your duties?

A:    As
investigator.

Q:   What
was your tour of duty on January 23, 1991?

A:    Twenty
four hours broken time.

Q:   On
January 23, 1991 was there any unusual incident that happened?

A:    Yes,
sir.

Q:   What
was that?

A:    At
about 9:00 p.m. of January 23, 1991 we conducted a buy-bust operation at No. 14
I. Reyes Street, Pasay City.

Q:   What
prompted you to place such buy-bust operation?

A:    By
the appearance of our informant a certain Gina.

Q:   What
do you mean by “the appearance of Gina”?

A:    She
gave us information of activities of one alias Omeng.

Q:   On
the same date?

A:    What
time was that?

A:    9:00
p.m. of January 23, 1991.

Q:   What
exactly did Gina inform you about a certain alias Omeng?

A:    Gina
informed us about the activities of drug selling of Omeng at No. 14 I. Reyes
St., Pasay City.

Q:   You
mentioned “us”, who were your companions?

A:    I,
Corporal Abatayo, Patrolman Amo, Patrolman Ronnie Miranda.

Q:   What
did you do?

A:    Corporal
Abatayo acted as team leader and he directed for me to act as poseur buyer.

Q:   About
poseur-buyer, what did you plan about?

A:    The
plan is for Gina to accompany me to No. 14 I. Reyes St.

Q:   Did
you use money in your operation?

A:    Yes,
sir, a One Hundred Pesos bill with serial number QZ056633.

Q:   Where
did you get this buy-bust money which you used?

A:    In
our intelligence fund.

Q:   Did
you record the same in your logbook?

A:    In
our police blotter, sir.

Q:   Before or after the operation?

A:    Before,
sir.

Q:   Will
you be able to show that logbook or registration sheet in the proper time?

A:    Yes,
sir.

Q:   May
we reserve the right to present that, your Honor?

Q:   Who
went to I. Reyes St.?

A:    Cpl.
Abatayo, I, Pat. Miranda, Pat. Amo and our informant, Gina.

Q:   And
before you proceeded there, do you personally know the appearance of this
certain Omeng?

ATTY. POLLO: Very leading, your Honor.

Q:   What
happened, did you arrive at the scene?

A:    I
and Gina proceeded to I. Reyes St. and we arrived at the door of the residence
of Omeng.

Q:   And
once at the said door of the residence you mentioned, what happened?

A:    Gina
proceeded to the back door of the house and she knocked on the door.

Q:   Was
there any response?

A:    Yes,
sir, the door was opened by a certain male individual.

Q:   After
the door was opened was there any conversation that took place between Gina and
the male individual?

A:    Yes,
sir. Gina introduced me to Omeng.

Q:   How?

A: Sabi ni Gina, “Ito si Omeng, used to be my customer, siya si Cabria
dating kakilala ko”.

Q:   After
that, what happened next?

A:    I
said I asked to be accompanied by Gina because I needed a
“panggamit.”

Q:   After
that what else happened?

A:    Nagpaalam
si Gina kay Omeng that she will buy cigarettes outside.

Q:   In
other words, you were left with Omeng?

A:    Yes,
sir.

Q:   Then
what happened?

A:    He
asked me how much I am going to buy.

A:    I
told him in the amount of Piso.

Q:   What
could be equivalent to One “Piso”?

A:    One
Hundred Pesos, sir.

Q:   What
else happened?

A:    I
gave him the money, the One Hundred Peso bill and he in turn gave me the stuff.

Q:   Where did he give the stuff?

A:    He
went inside of the room and when he came out he handed me one transparent
plastic bag.

Q:   If
that will be shown to you will you be able to recognize it?

A:    Yes,
sir.

Q: Will you please go over this exhibit and tell us if this was the one
given to you in exchange by Omeng? What
was in exchange given to you by Omeng?

Witness handed exhibit
D-2.

Q:   After
this exhibit’s contents were handed to you, what else happened?

A: My pre-arranged signal was made.

Q:   What
was that signal?

A:    By
scratching my head.

Q:   What
happened when the signal was made?

A:    I
introduced myself as a police officer to Omeng. Then Omeng saw Patrolman Miranda, then coming from my position,
Omeng pushed me. Then he went inside
the room.

Q:   What happened after you were pushed?

A:    Patrolman
Miranda caught the back of his pant’s waistline.

Q:   Inside
or outside?

A:    Inside.

Q:   What
did you do at that time?

A:    I
helped Pat. Miranda to catch Omeng.

Q:   Did
you actually go inside the house?

A:    Yes,
sir.

Q:   What
happened next?

A:    First
Pat. Miranda check all items from Omeng’s pocket.

Q:   Did
he find anything?

ATTY. POLLO: Leading.

COURT: Sustain.

Q:   After
that what happened?

A: Pat. Miranda recovered the One Hundred Pesos bill from the right
pocket of Omeng.

Q:   And
after that, what happened?

A:    When
Omeng was handcuffed, we saw several pieces of aluminum foil and improvised
burner at the center table.

Q:   Inside
the house of Omeng?

A:    Yes,
sir.

Q:   If
that will be shown to you again, will you be able to identify it?

A:    Yes,
sir. (Witness identifying the toother
and several pieces of aluminum foil).

Q:   Who
found these on the table?

A:    Patrolman
Miranda.

Q:   How
far were you when he found these paraphernalia?

A:    About
one meter, sir.

Q:   This
Omeng, is he present in this courtroom?

A:    Yes,
sir.

Q:   Will
you please point to him?

Witness pointed to a
male individual who identified himself as Romeo Bay.

(TSN, May 8, 1991, pp. 6-11, Original
Records.)

That there was no prior surveillance to identify the drug pusher
will not make the prosecution’s theory of a “buy-bust” operation
incredible. Prior surveillance is not
necessary in this case because the team members were accompanied to the scene
by their informant.

On the other hand, accused-appellant did not have a substantial
defense other than his denial. It is
well-settled that mere denials cannot prevail against the positive
identification of the accused as the seller of the prohibited drug (People
vs. Castiller, 188 SCRA 376 [1990]).

Curiously, accused-appellant never made any effort to locate
“Gil”, the person who according to accused-appellant was the real
target of the team. Certainly, in a
case where his own life and liberty are at stake, the victim of a wrongful
accusation would earnestly, yes, even desperately, seek ways to vindicate
himself by having the real culprit apprehended.

Finally, accused-appellant pleads instigation as a defense. He contends that assuming there was a sale
of “shabu” the transaction took place because of instigation not by
reason of entrapment.

In People vs. Gatong-o (168 SCRA 716 [1988]), the Court
explained the distinction between entrapment and instigation thus:

Entrapment is the employment of such ways and means for the purpose
of trapping or capturing a lawbreaker. Oftentimes, it is the only effective way of apprehending a criminal in
the act of the commission of the offense. In entrapment, the idea to commit the crime originated from the accused. Nobody induces or prods him into committing the offense. A criminal is caught committing the act by
ways and means devised by peace officers.

It must be distinguished
from inducement or instigation wherein the criminal intent originates in the
mind of the instigator and the accused is lured into the commission of the
offense charged in order to prosecute him. The instigator practically induces the would-be accused into the
Commission of the offense and himself becomes a co-­principal. In entrapment ways and means are resorted to
for the purpose of capturing the lawbreaker in flagrante delicto. In entrapment, the crime had already been
committed while in instigation, it was not and could not have been committed
were it not for the instigation by the peace officer.

The testimony of Pfc. Cabria, the poseur-buyer, was clear and
straightforward and demonstrated that accused-appellant needed no instigation
or prodding to commit a crime he would not otherwise have committed. The record shows that accused-appellant has
a ready supply of “shabu” for sale and disposition to anyone willing
to pay the price. The acts of the
“buy-bust” team in this case, constituted entrapment, a process or operation
not prohibited by the Revised Penal Code (People vs. Borja, 182 SCRA 581
[1990]).

All told, the Court is convinced that accused-appellant had
indeed committed the offense as charged. The verdict of conviction must be upheld because “a drug pusher is
a killer without mercy. He poisons the
mind and deadens the body. He deserves
no mercy.” (People vs. Abedes, 146 SCRA 132 [1986]).

Section 4, Article
II of Republic Act No. 6425, as amended, provides for the penalty of life
imprisonment and a fine ranging from P20,000.00 to P30,000.00. The dispositive part of the trial court’s
decision is not entirely accurate since
it imposed the penalty of reclusion perpetua. Such penalty, as understood in the Revised
Penal Code, has its own legal connotation,
effects, and accessory penalties which are not applicable to life imprisonment
provided by the Dangerous Drugs Act of 1972 which is a special law (People
vs. del Pilar, 188 SCRA 37 [1990]).

Thus, the penalty imposed on accused-appellant should have been
indicated as, and it is hereby declared to be, life imprisonment.

WHEREFORE, except with
the above modification, the judgment of the lower court is hereby AFFIRMED.

SO ORDERED.

Feliciano, (Chairman), Bidin, Davide, Jr., and Romero, JJ., concur.