PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ROBERTO CLAPANO Y SALVADOR, ACCUSED-APPELLANT.

Accused-appellant Roberto Clapano seeks the review and reversal
of his conviction by the Regional Trial Court, Branch 6, at Iligan City in
Criminal Case No. 06-3766 for a violation of Section 15 of Article III,
Republic Act No. 6425 (Dangerous Drugs Act of 1972, as amended). The lower court sentenced him to suffer the
penalty of life imprisonment and to pay a fine of P20,000.00, without
subsidiary imprisonment in case of insolvency.^[1]

As the Court has always done, appellant shall be given the full
measure of justice in passing upon the issue of his guilt or innocence, with a
detailed explanation of how we arrived
at our conclusions drawn from a thorough review and evaluation of the evidence
on record.

Appellant’s present predicament was judicially initiated by an
information alleging that on or about November 14, 1991, in the City of Iligan,
he “did then and there willfully, unlawfully and feloniously sell,
transport and deliver and have in his possession one (1) aluminum foil
containing Methamphetamine Hydrochloride or “Shabu” without being
authorized by law.”^[2] On a
plea of not guilty when arraigned on December 4, 1991,^[3] he
was thereafter tried in the court below with the assistance of counsel in all
stages.

The factual backdrop of this case, as found by the trial court,
started with police intelligence accounts which had pinpointed Cocograve Area
along Cabili Avenue in Iligan City as fast becoming the sanctuary of prohibited
drug peddlers. It was ascertained to be
the place where drug pushers were actively peddling their illegal merchandise
to drug users. This alarming
information prompted the 9th Narcotics Regional Field Unit stationed in the
city to conduct a surveillance of drug pushers in preparation for buy-bust operations
with the ultimate purpose of curbing drug addiction and apprehending drug
pushers.^[4]

The PNP NARCOM Field District Unit of Iligan City and Lanao del
Norte was headed by SPO3 Renato Salazar, assisted by SPO1 Julieto Vega. These police officers had recruited civilian
agents and informers to help them in a continuing campaign to identify drug
pushers. On November 14, 1991, the
NARCOM Unit received information from its confidential agent, Arnel Sistona,
that there was a drug pusher selling shabu who frequented Keno’s Restaurant on
Cabili Avenue,^[5] one of the main thoroughfares within
the city proper. SPO1 Vega and Sistona
immediately went to that place to determine the modus operandi of the
pusher.

When Vega and Sistona arrived at Keno’s Restaurant, Vega ordered
Sistona to buy shabu. Sistona entered the restaurant
leaving Vega outside to monitor and observe developments. At about 11:00 A.M., Sistona came out of the
restaurant and, together with Vega, returned to the NARCOM office. Sistona had informed Vega that he could buy shabu at 2:00 o’clock
that afternoon from appellant Roberto Clapano.

A team was organized, composed of Vega, SPO1 Generales, SPO3
Englatierra, SPO3 Duhaylungsod, and civilian agents Celso Ponce and
Sistona. While the team was being given
their final instructions on the conduct of the buy-bust operations, SPO3
Salazar directed Duhaylungsod to secure the amount of P300.00. The peso bills were photocopied and
subsequently authenticated by Fiscal Norma Siao of Iligan City Fiscal’s Office.^[6]

At about 1:40 P.M., upon arrival at Keno’s Restaurant, Sistona
entered the place and Vega positioned himself about five meters from the door
thereof. Duhaylungsod and the other
members of the team stayed at a place across Cabili Avenue. Shortly thereafter, Sistona came out of the
restaurant with Clapano.^[7] While
Sistona and Clapano were talking, Vega watched them and later saw the
poseur-buyer giving the money to Clapano. The latter then went inside the restaurant and, after a few minutes, he
returned and handed to Sistona an aluminum foil.^[8]

Sistona thereafter walked away and surreptitiously slipped the
aluminum foil to Vega who immediately examined the contents. Vega then gave the pre-arranged signal to
his companions who rushed towards appellant and identified themselves. Appellant was arrested and brought to the
NARCOM office for investigation.^[9]

The aluminum foil with its contents was forwarded to the local
office of the National Bureau of Investigation, Region 10, for laboratory
examination. On December 5, 1991,
forensic chemist Bernabe P. Arenga submitted the following report:

“FINDINGS:

Weight of specimen. . . . . . 0.1140 Gram

Laboratory examinations conducted on the above-mentioned specimen
gave POSITIVE RESULTS for METHAMPHETAMINE HYDROCHLORIDE. x x
x

REMARKS: METHAMPHETAMINE HYDROCHLORIDE
is locally known as ‘SHABU’ which is included in the list of Regulated
Drugs.”^[10]

Chemist Arenga explained in his testimony
at the trial his findings and the method used to determine the composition of
the specimen.

Appellant, in his defense, claims that at about 2:00 P.M. of
November 14, 1991, he was outside Keno’s Restaurant talking to a friend,
Michael Yaoyao, when he was suddenly arrested by the NARCOM agents.^[11]
He denied that he sold shabu to Sistona. He likewise accused the NARCOM agents of
manhandling him during the investigation. Clapano further alleged that his arrest and the shabu allegedly
sold by him to Sistona was a “mere frame-up for unknown reasons.”
Insinuating a possible motive, according to the appellant there was an incident
wherein he declined to testify against a drug user after being requested by the
NARCOM agents.^[12]

The defense also presented one Annette Madrazo who testified that
while she was on her way to a friend, she saw appellant being surrounded by four
persons and she heard that the latter was being arrested for drug pushing and
for using marijuana. She also testified
that she did not see anything being taken from appellant although his pockets
were searched and turned inside out.^[13]

After trial on the merits, the lower court held in its decision
that “the prosecution was able to establish by clear and convincing
evidence the selling transaction between the accused and Arnel Sistona
involving the ‘shabu’ through the testimonies of SPO1 Vega and SPO3
Duhaylungsod who are with the NARCOM District Field Unit, Iligan City.”^[14]
Hence, in its judgment promulgated on July 2, 1992, appellant was found guilty
beyond reasonable doubt of the crime charged and sentenced as explained at the
outset.

The basic assignment of error raised by the appellant in his
brief is whether or not the prosecution was able to establish his guilt. A thorough and conscientious examination of
the testimonial and documentary evidence presented in this case engenders moral
certainty that they constitute that degree of proof which produces conviction
in an unprejudiced mind.

To begin with, the errors imputed by appellant refer to the
credibility of witnesses and, in a long line of cases,^[15]
we have held that the determination of that credibility is the domain of the
trial court. In our criminal
jurisprudence, the rule is that when the issue is credibility of witnesses,
appellate courts will generally not disturb the finding of the trial court,
considering that the latter is in a better position to decide the question,
having heard the witnesses themselves and observed their deportment and the
manner of testifying during the trial.^[16]

While this rule admits of certain exceptions, as when the trial
court has plainly overlooked certain facts of substance and value which, if considered, might affect the result
of the case,^[17]
the findings of the court a quo in the present case cannot qualify
as such an exception, and appellant has miserably failed to give any reason why
it should be considered as such. Two
important considerations bolster the correctness of the findings of the trial
court.

Firstly, the testimonies of the arresting officers are positive
in character while that of appellant is negative. Thus, the former’s testimonies necessarily prevail over the
latter. Secondly, no improper motive
has been imputed to the arresting officers. They are, therefore, presumed to have regularly performed their official
duty in the absence of any evidence to the contrary. The fact that Clapano sold the shabu and received
consideration therefor in a buy-bust operation was duly proved by the testimony
of SPO3 Julieto Vega and amply corroborated by the other members of the NARCOM
team.

The defense would consequently like to subvert the testimonies of
the other police officers, saying that they were quite far from the place where
Clapano and Sistona consummated the
illicit sale. In People
vs. Collantes,^[18] where the appellant contended that the
testimonies of the police officers were hearsay, this Court held that said
testimonies of the two policemen-companions were not hearsay even though they
had to necessarily watch the buy-bust operation from a distance, otherwise
their close proximity to the operation would have given it away. They were there merely to watch the
transaction surreptitiously, to act furtively, and to close in only when the
opportunity arose.

The narration of the incident by the prosecution witnesses is far
more worthy of belief coming as it does from law enforcers who are presumed to
have regularly performed their duty. In
fact, the testimony of defense witness Annette Madrazo did not contradict the
version of the police. When Madrazo
said that “nothing was recovered from the accused during the arrest,”
it corroborated the testimony of Vega that after appellant received the marked
money from Sistona, Clapano went inside the restaurant and reappeared after a
while, which fact was evidently the reason why the marked money was not with
appellant when he was arrested thereafter.

Appellant likewise insisted that he was just a victim of a
frame-up but he, however, failed to present any evidence to substantiate his
claim. In a number of cases, we held
that such a defense which is often imputed to the police officers requires
stronger proof because of the presumption that the public officers acted in the
regular performance of their official duties.^[19]
Nothing in the records suggests that the testimonies of the NARCOM agents were
motivated by any reason other than their mission to curb drug abuse. As a matter of fact, appellant himself even
testified that he does not know of any reason why the police would maliciously
concoct a case against him.^[20]

During the trial of the case, appellant claimed that he was just
talking to a certain Michael Yaoyao when he was arrested by the NARCOM
agents. It is significant, though, that
the defense failed to present Yaoyao who could have easily corroborated the
story of Clapano. Neither was such
non-presentation of Yaoyao duly explained nor accounted for. Ineluctably, therefore, such defense of an
alleged frame-up appears to be an afterthought conceived in desperation.

Appellant also claims that the failure to present the
poseur-buyer/informer and the marked money is a crucial debacle to the
prosecution’s case. That
non-presentation of the informer as a witness is not fatal. The determination of who should be utilized
as prosecution witnesses is addressed to the sound discretion of the prosecutor
handling the case. As the prosecutor
had other witnesses who could sufficiently prove the criminal operations of
appellant, he could dispense with the informer’s evidence which would have been
merely corroborative.^[21] The
testimony of Sistona is not
indispensable in view of the testimony of two prosecution witnesses who were
members of the narcotics team which conducted the buy-bust operation. The testimony of SPO3 Vega is sufficient
since he saw the whole incident a short distance from the side of the doorway
of Keno’s Restaurant, approximately five meters away from where Sistona and
appellant consummated the sale.

The fact that the money given to appellant was not presented in
court does not militate against the prosecution’s case where there is an
unrebutted testimony of an eyewitness who saw the actual handling over of the shabu in exchange for the money. This Court has consistently ruled that the absence of the marked money
does not create a hiatus in the prosecution’s evidence.^[22]

Finally, the appellant argues that his right against unreasonable
search and seizure has been violated by the NARCOM agents. We need merely quote the refutation
submitted by the Solicitor General on this score:

“The contention lacks merit for the seizure of the aluminum
foil containing shabu through entrapment is sanctioned by law.

“There is entrapment when a police officer employs ruses and schemes to ensure the apprehension of
the criminal while in the actual commission of the crime (Araneta vs. CA, 142
SCRA 534). As borne (out) by the
evidence, the entrapment laid out by the NARCOM team, through a buy-bust
operation with one member of the police team posing as a buyer of the
prohibited drug and which (led) to the arrest of the appellant in flagrante
delicto is in accordance
with the foregoing rule. And, since
entrapment is not a defense and neither is it prohibited and contrary to law, appellant’s conviction is proper
(People vs. Lu Chua, 56 Phil. 44).“^[23]

WHEREFORE, the judgment of the court a
quo is AFFIRMED, with
costs against accused-appellant.

SO ORDERED.

Narvasa, C.J., (Chairman),
Padilla, Nocon, and Puno, JJ., concur.

^[1]
Original Record, 63; per Judge Valerio M. Salazar.

^[2]
Ibid., 1.

^[3]
Ibid., 14.

^[4]
Ibid., 3.

^[5]
Brief for the Plaintiff-Appellee, 2; Rollo, 76.

^[6]
TSN, February 14, 1992, 5-7, 73-75; Exhibit “E”.

^[7]
TSN, January 14, 1992, 36-39.

^[8]
Ibid.,
id., 43-45.

^[9]
Ibid.,
id.,
45-47.

^[10]
Exhibit C; Original Record, 36.

^[11]
Brief for the Accused-Appellant, 4-5; Rollo, 47-48.

^[12]
TSN, April 1, 1992, 4-5, 16.

^[13]
Ibid., February
26, 1992, 4.

^[14]
Original Record, 61.

^[15]
People vs. Tejada, 170 SCRA 497 (1989); People vs. Viloria, Jr.,
191 SCRA 777 (1990); People vs. Gerones, 193 SCRA 263 (1991); People vs.
Linsangan, 195 SCRA 784 (1991).

^[16]
People vs. Pascual, 208 SCRA 393 (1992).

^[17]
People vs. Arenas, et al., 198 SCRA 172 (1991).

^[18]
208 SCRA 853 (1992).

^[19]
People vs. Macuto, 176 SCRA 762 (1989); People vs. Blas, 209 SCRA
339 (1992); People vs. Liquen, 212 SCRA 288 (1992).

^[20]
TSN, April 1, 1992, 15.

^[21]
People vs. Alerta, Jr., 198 SCRA 656 (1991); People vs. Rumeral,
200 SCRA 194 (1991).

^[22]
People vs. Sanchez, 173 SCRA 305 (1989); People vs. Marcos, 185
SCRA 154 (1990); People vs. Del Pilar, 188 SCRA 37 (1990); People vs. Tandoy, 192 SCRA 28 (1990); People vs. Alerta, Jr., supra.

^[23]
Brief for the Appellee, 10; Rollo,
84. See also People vs. Liquen,
supra.