PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. VICTORINO PABLO AND IMELDA CUSTODIO, ACCUSED-APPELLANTS.

For allegedly selling shabu, Victorino Pablo and Imelda Custodio
were charged with violating Sec. 21, par. (b), Art. IV, in relation to Sec. 15,
Art. III of R.A. 6425, otherwise known as The Dangerous Drugs Act of 1972, as
amended, in an information filed before the Regional Trial Court of Manila.

On 30 April 1991, the court a quo rendered a decision finding both accused guilty of the crime
charged in the information and sentencing each to life imprisonment and to pay
a fine of P20,000.00.^[1]

Both accused are now before us on appeal alleging that the trial
court erred (a) in giving full faith and credence to the conflicting and
unreliable testimony of prosecution witness Pat. Ramir Reciproco; (b) in not
declaring as unconstitutional and illegal the search and seizure conducted in
the person of appellant Imelda Custodio and as inadmissible the evidence seized
from her; (c) in holding that there was conspiracy on the part of appellants
relative to the crime attributed to them; and, (d) in finding them guilty of the
crime charged despite the fact that their guilt has not been proved beyond
reasonable doubt.

The evidence of the prosecution shows that on 27 February 1990,
at about one forty-five in the morning, upon the instruction of
Officer-in-Charge Lt. Arthur de Guzman, Pat. Ramir Reciproco together with Pat.
Emmanuel Lopez of the Dangerous Drugs Enforcement Section of the Makati Police
Station conducted a surveillance and a possible buy-bust operation on
appellants along Pasong Tamo Street, Makati. Lt. de Guzman ordered that a buy-bust operation be done based on the
information of the anonymous caller that appellants were peddling drugs in the
area.

Forthwith, the two police officers contacted a confidential
informant who was acquainted with the two appellants. Thereafter, together with the confidential informant, they
proceeded to the Ever Disco Pub. When
they were within the area, the two police officers were able to determine the
descriptions of the two appellants and to observe their actuations. The appellants were observed by the police
officers to be transacting business with some persons outside the pub.

Subsequently, Pat. Reciproco was introduced by the confidential
informant to appellant Pablo alias “Vic.” Meanwhile, Pat. Lopez
posted himself in a nearby store, about ten (10) meters away from them. After a short conversation, the confidential
informant left. Appellant Pablo asked
Pat. Reciproco if he wanted to “score” (in street language it means
desire to buy drugs). Pat. Reciproco
replied in the affirmative but for only one (1) deck which was about 1/10 of a
gram. Appellant Pablo then immediately
called his co-appellant Custodio who was in front of the Ever Disco Pub and
asked her to give him one (1) deck of the merchandise. Pat. Reciproco handed the P100.00 marked
money to Pablo who gave it to Custodio. The latter handed the white crystalline substance to Pablo who in turn
handed it to Pat. Reciproco. At this
point, Pat. Reciproco gave the pre-arranged signal to Pat. Lopez and together
they approached the two (2) appellants and introduced themselves as members of
the Makati Police Force. Pat. Lopez
recovered the marked money from Custodio.

The police officers later brought the two (2) appellants to the
Office of the Dangerous Drugs Enforcement Section of the Makati Police
Station. There the two accused were
investigated by Cpl. Bienvenido Venturina who received the pre-marked
P100.00-bill and the confiscated white crystalline substance which was later
delivered to the NBI for examination. The two police officers executed an affidavit of arrest.

On 27 February 1990, the NBI Forensic Chemist Felicisima
Francisco issued a certification and a Dangerous Drugs Report stating that upon
examination, the specimen submitted yielded positive results for methamphetamine
hydrochloride.

On the other hand, the defense presented a different
version. According to appellant Pablo,
he has been a regular waiter at the Ever Disco Pub for nine (9) years. On 27 February 1990, at about one forty-five
in the morning, while on duty at the disco pub, his co-appellant and live-in
partner Imelda Custodio asked him to buy a newspaper. After buying and while he was in front of the disco pub, Pat.
Emmanuel Lopez suddenly grabbed him on the neck and forcibly placed him on
board a jeep. He asked Pat. Lopez the
reason for the arrest but the latter did not reply. The manager of the disco pub by the name of “Ate
Winnie” then called his co-appellant who was sleeping in the VIP Room of
the pub but the policemen also arrested her.

On her part, appellant Imelda Custodio narrated that on 26
February 1990, at around eleven in the evening, she visited appellant Pablo at
the Ever Disco Pub. By midnight she was
already resting in the VIP Room while appellant Pablo went out to buy a tabloid. At about one o’clock in the morning, she was
awakened by a woman who told her that her co-appellant Pablo was placed in a
jeep. As she went out of the disco pub
to find out what happened, Pat. Lopez approached her, placed his hand on her
shoulder and told her not to run. Instead, he told her to go with them. She asked him why, but Pat. Lopez did not answer. The two appellants were then taken to the
Narcotics Section of the Makati Police Station where they were booked for drug
pushing. Pat. Reciproco brought out one
deck of shabu from his pocket alleging that he recovered it from
appellants. Pablo denied the accusation
and was mauled by the police officers to force him to admit that he committed
the crime. Meanwhile, Custodio was
brought to the comfort room were she was told to undress since they were
looking for something. She remained naked for about thirty
(30) minutes while Pat. Reciproco was
standing there. After that, she was
brought back to the Narcotics Section where she saw co-appellant Pablo still
being mauled by the policemen.

We affirm the conviction
of appellants Victorino Pablo and Imelda Custodio. The errors imputed to the trial court are bereft of merit. The basic issue raised in this appeal is the
credibility of witnesses. It is settled
that the findings of the trial court on credibility are entitled to great
weight and respect unless some material facts have been overlooked or
misconstrued as to affect the result.^[2] We find that the exceptions to the rule do
not apply in this case.

Appellants argue that the
testimony of prosecution witness Pat. Reciproco is full of inconsistencies
which cast grave doubt on its veracity. They further claim that Pat. Reciproco testified on direct examination
that he saw appellant Pablo handing the marked P100.00-bill to appellant
Custodio while the latter gave the shabu to the former. However, appellants further argue, on
cross-examination he denied having seen the exchange of the marked money and
the shabu between the appellants since their backs were turned from him. Still further, appellants contend that Pat.
Reciproco alleged during the direct examination that while he was observing
Pablo, some people approached the latter and the confidential informant also
told him that the persons who talked to Pablo usually bought shabu. However, on cross-examination, Pat.
Reciproco stated that he was on the other side of the street and that he did
not see any person talking to Pablo.

The inconsistencies mentioned by the defense are baseless. Even on cross-examination and re-direct
examination, Pat. Reciproco affirmed that Pablo handed to him one (1) deck of
shabu and that as soon as he gave the P100.00-bill to Pablo, he saw the latter
and his co-appellant talk for three (3) minutes.^[3]
Regarding the other alleged inconsistencies pointed to by appellants, the same
refer to minor matters which do not affect the credibility of the prosecution
witness. Besides, the manner by which
appellants transferred to each other the shabu and marked money before giving
the shabu to Pat. Reciproco is not material as it is not an essential element
of the offense with which they are charged.

Appellants vehemently contend that since Pat. Reciproco could not
testify as to the alleged participation of Custodio, the search conducted on
her person is illegal and the marked bill and shabu obtained in her possession
are inadmissible in evidence.

After a careful review of the evidence, we are convinced that as
a consequence of the buy-bust operation conducted by the police officers, appellants
were caught in flagrante delicto engaging in the illegal sale of a
prohibited drug. The prosecution was
able to prove beyond reasonable doubt that appellants did sell one (1) deck of
shabu to Pat. Reciproco. The latter
positively testified on such fact and the details of the sale. Since the appellants were caught while
actually committing the crime, their arrest was lawfully effected without a
warrant,^[4]
and the warrantless search conducted on Custodio who was lawfully arrested was
likewise valid and legal as an incident to a lawful arrest.^[5] The
drug sold to Pat. Reciproco by appellants as a result of the buy-bust operation
was confirmed to be shabu by the NBI forensic chemist. Hence, there is no doubt that the article
seized is admissible in evidence against appellants.

As between the straightforward and positive testimony of Pat.
Reciproco and the bare denial or negative testimony of appellants, the former
undeniably is entitled to credence and deserves great weight. We have held that the testimony of only one
witness if credible and positive and satisfies the court beyond reasonable
doubt, is sufficient to convict.^[6]

Moreover, the entrapment
and arrest of appellants were made in accordance with law. A surveillance was conducted by the police
officers upon the instruction of the officer in charge before the buy-bust
operation was effected. No ill motive
was or could be attributed to the police officers. In fact, appellants do not know of any reason why they were
arrested and charged with this crime. Such lack of an improper motive coupled with the presumption of
regularity in the performance of official functions as well as the findings of
the trial court on the credibility of witnesses should prevail over the
self-serving and uncorroborated denial and alibi of appellants.

In view thereof, there is
no ground to reverse the judgment of the trial court. However, with the passage of R.A. 7659^[7] amending certain sections of The
Dangerous Drugs Act, and following our ruling in People v. Simon^[8] to make the amendatory provisions apply
retroactively as they are favorable to the accused, the penalties imposed by
the trial court must be modified accordingly.

Appellants are found guilty of violating Sec. 21, par. (b), Art.
IV, in relation to Sec. 15, Art. III, of R.A. No. 6425 which, as amended by
R.A. 7659, carry the penalty of reclusion
perpetua to death and an
increased fine of P500,000.00 to P10,000,000.00 if the shabu involved is 200
grams or more; otherwise, if the quantity sold, delivered or distributed be
less, only the penalty ranging from prision
correccional to reclusion temporal shall be imposed.

In the instant case, the weight of the shabu sold by appellants
is 0.071 gm.^[9]
Since the weight of the shabu is less than 200 grams, the reduced penalty of prision correccional to reclusion temporal should
apply. With no attendant mitigating or
aggravating circumstance, the proper imposable penalty is prision correccional in its
medium period. Applying the
Indeterminate Sentence Law, the maximum shall be taken from the medium period
of prision correccional, which is two (2) years, four (4)
months and one (1) day to four (4) years and two (2) months, while the minimum
should be drawn from the penalty next lower in degree, which is arresto mayor, the range of which is one (1) month and one (1) day to six (6)
months.

WHEREFORE, the decision appealed from finding
accused-appellants VICTORINO PABLO and IMELDA CUSTODIO guilty beyond reasonable
doubt of violating Sec. 21,
par. (b), Art. IV, in relation to Sec. 15, Art. III, of R.A. 6425, as amended,
is AFFIRMED with the modification that each of the appellants is sentenced to
suffer an indeterminate prison term of four (4) months and twenty (20) days of arresto
mayor maximum as minimum, to four (4) years and two (2) months of prision
correccional medium as maximum, with costs against both accused-appellants.

SO ORDERED.

Padilla, (Chairman), Davide, Jr., Quiason, and Kapunan, JJ., concur.

^[1]
Penned by Judge Oscar B. Pimentel, Br. 148, Manila; Rollo, pp.
79-90.

^[2]
People v. Lañaylahay, G.R. Nos. 104737-38, 26 October
1994.

^[3]
TSN, 29 October 1990, pp. 11-12.

^[4]
Sec. 5, Rule 113, 1985 Rules on Criminal Procedure, as amended.

^[5]
Sec. 12, Rule 126, id.

^[6]
People v. Trigo, G.R. No. 74515, 14 June 1989, 174 SCRA 93.

^[7]
An Act to Impose the Death Penalty on Certain Heinous Crimes, Amending for that
Purpose The Revised Penal Code, as Amended, Other Special Penal Laws, and for
Other Purposes.

^[8]
G.R. No. 93028, 29 July 1994.

^[9]
Records, p. 9.