G.R. No. 130836. August 11, 2000
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ARNEL C. MONTANO, ACCUSED-APPELLANT.
MENDOZA, J.:
of the Regional Trial Court, Branch 262, Pasig City, finding
accused-appellant Arnel C. Montano guilty of violation of Art. III, §15
of Republic Act No. 6425 (Dangerous Drugs Act), as amended by Republic
Act No. 7659, and sentencing him to suffer the penalty of reclusion perpetua and to pay a fine of P2 million and the costs of the suit.
The information[2] against accused-appellant alleged –
That in the afternoon of (the) 22nd of January, 1996, in the
municipality of Taguig, Metro Manila, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused did then
and there willfully, unlawfully, feloniously and knowingly sell,
distribute and/or deliver 229.7 grams of Methamphetamine Hydrochloride
otherwise known as ‘shabu’ which is a regulated drug, without the
corresponding license and/or legal authority to sell, distribute and/or
deliver the same.CONTRARY TO LAW.
When arraigned, the accused-appellant pleaded not guilty, whereupon he was tried.
The presentation of the testimony of the first witness for the
prosecution, Forensic Chemist Demelen Dela Cruz of the National Bureau
of Investigation (NBI), was dispensed with, as the defense entered into a
stipulation with the prosecution concerning the following facts: (1)
that 229.7 grams of a white crystalline substance was submitted to the
NBI Forensic Chemistry Division for laboratory examination to determine
if it was methamphetamine hydrochloride or shabu; (2) that a
forensic examination was performed by the witness on the substance
submitted; (3) that the substance was found to be positive for shabu;
and (4) that the substance was the same 229.7-gram substance submitted
for forensic examination by NBI Agent Timoteo Rejano. Accused-appellant
denied, however, that the shabu had been seized from him.[3]
The prosecution presented evidence showing that the shabu had been seized from accused-appellant, thus:
Sometime in the second week of January 1996, NBI Agent Timoteo
Rejano received a tip from a female confidential informant that the
accused-appellant was engaged in the distribution of shabu in Taguig, Metro Manila.[4]
Agent Rejano and the informant, therefore, conducted a “test-buy”
operation on January 18, 1996 at accused-appellant’s residence at 104 N.
P. Cruz St., Barangay Ususan, Taguig, Metro Manila.[5]
When they arrived at the place, the female informant went inside the
gate as Agent Rejano stayed behind. After thirty minutes, the informant
asked Agent Rejano to come in, and the two then proceeded along a
roofed alley with concrete walls on both sides. They entered a second
gate where a store with a long bench was located. A woman, whom Agent
Rejano came to know was accused-appellant’s mother, tended the store.
At the gate, the informant introduced Agent Rejano to accused-appellant as a Chinese drug-user and a big-time buyer of shabu.
While Agent Rejano waited at the store, the informant went with
accused-appellant in front of the latter’s house about 15 meters away
and transacted business with him on the porch. Agent Rejano saw them
sniffing something while seated on the metal chairs. After thirty
minutes, the informant returned to Agent Rejano and secretly told him
that she already had the stuff from the accused-appellant. Thereafter,
they left and returned to the NBI office in Taft Avenue, Manila.
The stuff was submitted for forensic examination and was found to be shabu.
After Agent Rejano reported to his superiors what transpired during
the operation, he was directed to conduct with the informant another
“test-buy” operation on the accused-appellant in order to gain the
latter’s trust and confidence. The plan was eventually to make him sell
a larger amount of shabu to them.[6]
On January 19, 1996, Agent Rejano, together with the female
informant and another intelligence agent, returned to
accused-appellant’s house to purchase more shabu. Again, it
was the informant who transacted with accused-appellant while Agent
Rejano and the intelligence agent stayed at the store. After half an
hour, the informant returned and discreetly told them that she had with
her the stuff from accused-appellant and that the latter was willing to
deliver 200 grams of shabu on January 22, 1996. Then, they left.
Upon arriving at the NBI, Agent Rejano made a request[7]
for the forensic examination of the crystalline substance purchased
from accused-appellant. Forensic Chemist II Emilia Andeo-Rosaldes
issued a certification,[8] dated January 19, 1996, stating that the substance submitted was shabu. [9]
On January 22, 1996, a team of NBI agents proceeded to Taguig,
Metro Manila aboard three vehicles. About 100 meters away from the
target area, the buy-bust team, composed of Agent Reynaldo Esmeralda,
Agent Regner Peneza, and the informant, took a tricycle to
accused-appellant’s house, while the rest of the NBI operatives waited
for a signal at a distance. Accused-appellant and his mother met the
buy-bust operatives. The informant informed accused-appellant that they
already had the money and were ready to buy 250 grams of shabu.
Accused-appellant then led the group to an alley towards the kitchen
outside his house. The informant introduced Agent Peneza as her husband
and Agent Esmeralda as the bodyguard of her employer, the Japanese
financier. Accused-appellant’s mother then served the group some
snacks, consisting of leche flan and softdrinks. Accused-appellant left
them and, after a few minutes, returned with Hector Tinga.
Accused-appellant told the group to follow him. Accused-appellant’s
mother was left behind. They passed through a dark narrow alley leading
to an enclosed space at the back of accused-appellant’s house. Tinga
brought out two plastic packets of a white crystalline substance and
handed them to accused-appellant. Accused-appellant gave the packets to
the informant who tested the contents by burning a small amount using
an improvised tooter. When the informant confirmed that the substance
was shabu, accused-appellant asked for the money.
Agent Esmeralda handed accused-appellant bundles of P100 bills.
While the accused-appellant and Tinga were counting the money, Agents
Esmeralda and Peneza announced the arrest and handcuffed the two.
Esmeralda radioed the other members of the NBI team to proceed to the
area.[10] After the team
secured the house, Agent Auralyn Pascual served the search warrant to
the mother of accused-appellant. With two barangay officials as
witnesses, the NBI agents recovered from the search, besides the two
packets of white crystalline substance, a tooter, a burner, aluminum
foil, a pair of scissors, and a match.[11]
The items were listed in the inventory of articles seized which was
signed by Agent Pascual and attested to by the barangay officials.[12] Agent Pascual gave the mother of the accused-appellant a copy of the inventory.
The NBI team brought accused-appellant and Tinga to NBI Taft
where they were booked and their photographs and fingerprints taken.[13] The two packets of white crystalline substance,[14] marked as AM-1 and AM-2 respectively, and the improvised tooter[15]seized during the search were forwarded to the forensic chemistry laboratory for examination.[16]
Accused-appellant and Tinga were brought to the Department of Justice
for inquest and then detained at the NBI Taft. The report on the
forensic examination showed that the crystalline substance, weighing
229.7 grams, was shabu. The tooter, however, was negative for shabu.[17] Later, the Department of Justice, through Prosecutor Ferdinand Abesamis, issued a Resolution, dated February 1, 1996,[18]
recommending the filing of an information only against
accused-appellant on account of the insufficiency of evidence against
Tinga.[19]
Accused-appellant denied that there were “test-buy” operations
conducted on him on January 18 and 19, 1996. His version of the
incident is as follows:
In the afternoon of January 18, 1996, while he was cleaning the
passenger jeepney he was driving, a woman arrived and introduced herself
as “Solly.” As she was looking for the residence of Hector Tinga,
accused-appellant pointed to her the direction to the said house. After
a few minutes, Solly returned and told him that the gate was closed.
She requested him to fetch Tinga. Accused-appellant said he acceded to
the request and that, after a while, Tinga came to meet the stranger.
According to accused-appellant, Solly told him that she and Tinga met in
a nightclub in Ermita, and that she worked for a Japanese employer.
Accused-appellant said that he got interested, because he wanted to work
abroad, and the stranger might be able to help him get employment
overseas.
Accused-appellant testified that, on January 22, 1996 at around 2
p.m., Solly returned to his house with her husband and the bodyguard of
her Japanese employer. They proceeded directly to the “dirty” kitchen
of his house without knocking at the unlocked gate. Accused-appellant
said he did not inquire into the purpose of their visit because he
assumed it was about his application for overseas employment. They
allegedly assured him that they would help him. He introduced them to
his mother, who served them leche flan and softdrinks. Then, his mother
left to fetch his children and his nephew from school. After eating,
Solly and her companions moved to the garden, also inside the compound.
Solly requested him to call Tinga. He was about to go, but he saw
Tinga coming. Accused-appellant assumed that they agreed to meet at his
house. After greeting Tinga and telling him that Solly was waiting for
him in the garden, he went inside the kitchen to wash the dishes used
by his visitors. Tinga and the visitors went inside his house and
joined his children in watching television. Accused-appellant asked
Tinga if he could help him in securing an overseas job and Tinga told
him he would. He claims that he went out to get an electric fan for his
visitors but, when he returned, he saw them already in the storage room
at the back of his house. He stated that he saw Tinga handing two bags
of shabu to the “bodyguard,” who turned out to be NBI Agent
Esmeralda. According to accused-appellant, he told Tinga and the
visitors that he might be implicated in the transaction, and that his
mother would get angry because she did not know that they were
transacting shabu in his house. They assured him, however,
that they would take care he did not get involved in the deal. Then, he
saw Solly’s “husband,” whom he later learned was Agent Peneza, handing
over a bag of money to Tinga. It was then that the NBI agents
identified themselves and ordered him and Tinga, at gun point, to lie
face down on the floor. He and Tinga were handcuffed. He allegedly
said, “Iyan na nga ba ang sinasabi ko tapos ito pa ang mapapala ko, kawawa naman ako.” Accused-appellant claimed he was kicked and was told that he would be “taken care of.”
Aurora Montano, accused-appellant’s mother, arrived and found her
grandchildren running around. One of them told her that
accused-appellant was handcuffed and lying face down on the floor. When
his mother saw him and the NBI agents, she exclaimed, “Bakit ganito ang nangyari? Akala ko ba tutulungan ninyo ang anak ko, ngayon ito pa ang mapapala namin.”
The NBI agents repeated to his mother that they would “take care of
him.” Then, another group, presumably with the NBI team, arrived and
took pictures of them. Accused-appellant and Tinga were brought out of
the storage room. Still another group arrived with the barangay
chairman, showed his mother a search warrant, and conducted a search on
the house. According to him, nothing was recovered from his house. He
and Tinga were taken to the NBI office for fingerprinting. Again, he
was told that he would be “taken care of.” He and Tinga were detained
separately at the NBI Taft. Later, he said he was surprised to learn
that Tinga was released. Subsequently, he was transferred for detention
to MMRC, Camp Ricardo Papa, Bicutan.[20]
On cross-examination, accused-appellant testified that Solly
approached him on January 18, 1996 because there was nobody else at that
time she could ask for direction to Tinga’s house.[21] He said he was not investigated at the NBI office but was only asked by Agent Esmeralda as to who was the owner of the shabu.[22]
Aurora Montano, accused-appellant’s mother, also testified for
the defense. She stated that, on January 18, 1996, she was at their
house taking care of her grandchildren, but she denied that they had
visitors that day. Likewise, she denied having any visitor at their
house on January 19, 1996. According to her, on January 22, 1996 at
around 2 p.m., she went out of the house and saw her son, two men, and a
woman seated on the bench of their “dirty” kitchen along the
passageway. She described the passage as 140 meters long, 2 ½ meters
wide, six feet in height, with concrete walls on both sides, a roof, and
three gates. According to her, the “dirty” kitchen was located 40
meters from their house and 100 meters away from the first gate. Her
son introduced her to the visitors and requested her to prepare some
snacks for them. She overheard them talking about a recruitment agency
in Japan. She remembered one of them was named “Boyet.” After serving
them leche flan and softdrinks, she said she went out to fetch her
grandchildren from school. When she arrived, her son and his companions
were not in sight. Then, a group of around twenty armed persons
arrived and kicked their main and middle gates, shouting “shabu, shabu.” She told them there was no shabu
in the house. After driving these people away, she went inside to look
for her grandchildren. Some of them were at the back of their house
where their storeroom was located. She went to the storeroom through
another passage and found her son and Tinga with their arms raised. The
visitors were also there and introduced themselves as NBI operatives.
The other NBI agents arrived after a few minutes. Her son and Tinga
were brought to the porch and handcuffed. Afterwards, another group
arrived with the barangay chairman and showed her a search warrant.
They conducted a search throughout the house but they allegedly did not
find anything. Then, the two were taken to the NBI office in Taft
Avenue.[23]
On cross-examination, she testified that she did not know the
reason why her son, Tinga, and their visitors went to their storage room
on January 22, 1996. She did not even notice them going there but only
found out that they did when she went and saw her grandchildren in the
storeroom. She testified that nobody could enter the storeroom without
her son’s permission. Aurora Montano admitted that she knew Tinga was
selling shabu but claimed that she could not forbid her son
from associating with Tinga because they were neighbors. She said she
was surprised why Tinga was released while her son remained in detention
and was the only one charged in court. She stated that Tinga is the
cousin of Congressman Dante Tinga.[24]
On August 29, 1997, the trial court rendered a decision,[25] the dispositive portion of which reads:[26]
WHEREFORE, judgment is hereby rendered finding accused Arnel C.
Montano GUILTY beyond reasonable doubt of violating Section 15, in
relation to Section 20, of Republic Act No. 6425, as amended, otherwise
known as the Dangerous Drugs Act of 1972. Said accused is hereby
sentenced to: (a) suffer the penalty of reclusion perpetua, (b) pay a fine in the amount of Two Million Pesos (P2,000,000.00), and (c) pay the costs.SO ORDERED.
Accused-appellant contends that the trial court erred in convicting
him: (1) “despite its findings that the prohibited drug subject matter
of (the) case did not originate from appellant but from Hector Tinga”;
(2) “despite the fact that he was singled out for prosecution
in violation of his right to equal protection of laws”; and (3) “on the
basis of an alleged buy-bust operation when it was shown to have been
resorted to harass, extort and abuse.”[27]
In the alternative, he prays that this Court find him guilty as an
accomplice only, because he merely handed to the poseur-buyers the drug
which Tinga produced.[28]
We find these contentions without merit.
First. This Court has held that the elements necessary
for the prosecution of the illegal sale of drugs are: (1) the identity
of the buyer and the seller, the object, and consideration; and (2) the
delivery of the thing sold and the payment therefor.[29]
Contrary to accused-appellant’s assertions, the evidence for the
prosecution establishes these elements beyond reasonable doubt. NBI
Agents Esmeralda and Peneza positively identified accused-appellant as
the person who, together with Tinga, sold to them two plastic packets of
a white crystalline substance.[30] Accused-appellant was thus caught in flagrante delicto in the buy-bust operation conducted by the NBI. The corpus delicti of the crime charged, i.e., the 229.7 grams of shabu, was duly established before the trial court.[31] In fact, accused-appellant, through his counsel, even admitted the same.[32]
He delivered the drug to the buy-bust team and payment for it was made.
The fact that the drug originally came from Tinga is immaterial. As
held by this Court, proof of ownership of the drug is not necessary in
the prosecution of illegal drug cases. It is sufficient that it was
found in accused-appellant’s possession.[33]
Indeed, from the evidence adduced by the prosecution, it cannot
be denied that accused-appellant had possession of the 229.7 grams of shabu. It was he who delivered the same to the NBI operatives after it was handed to him by Tinga.[34] After making the delivery, he and Tinga asked for the payment.[35]
Second. Accused-appellant invokes the defense of alibi.
He claims that he went out of his house to get an electric fan and
only witnessed the illegal transaction after his return and that he was
merely implicated by the arresting officers.
This defense is uncorroborated. Accused-appellant’s mother
testified that she too was out of the house at the time the buy-bust
operation was being conducted and that, when she came back, she saw her
son and Tinga already under arrest.
We have consistently held that the defense of alibi, if not
substantiated by clear and convincing evidence, is weak, self-serving,
and without weight in law, and thus undeserving of consideration by the
courts. It cannot prevail over the positive identification of the
prosecution witnesses who have no reason or ill motive to testify
falsely against the accused-appellant.[36]
In this case, the testimonies for the prosecution are consistent,
unequivocal, and replete with details of the transaction with
accused-appellant, and, therefore, merit our full faith and credence.[37]
Third. The presumption of regularity in the performance
of their duties in favor of the arresting officers had not been
sufficiently controverted by accused-appellant; hence, this Court is
bound to uphold the same.[38]
Except for his self-serving statements, accused-appellant failed to
present evidence to establish that the buy-bust operation was “resorted
to harass, extort and abuse.” In a vain attempt to establish his
inculpability, he even questioned the validity of his arrest on account
of the absence of a warrant. The fact, however, is that
accused-appellant was apprehended in flagrante delicto during a
buy-bust operation against him and his arrest falls within the ambit of
Rule 113, §5(a) of the Rules on Criminal Procedure on arrests without a
warrant. Indeed, this Court has already ruled that a buy-bust
operation is “a form of entrapment which has repeatedly been accepted to
be a valid means of arresting violators of the Dangerous Drugs Law.”[39] The validity of the arrest in this case must be sustained.
Fourth. Nor is there merit in accused-appellant’s
assertion that, because of the release of Hector Tinga, he is entitled
to an acquittal. No principle of equality justifies setting free a man
who is otherwise guilty just because his co-conspirator escaped
prosecution. Accused-appellant’s guilt is not dependent on whether
or not Tinga was similarly charged with the same offense. As
discussed above, the evidence against accused-appellant sufficiently
establishes his guilt beyond reasonable doubt.
However, it cannot be denied that Agents Peneza and Esmeralda
testified that Tinga, who brought out the sachets from his pocket and
counted the purchase money with accused-appellant, also directly
participated in the sale. What should be done, therefore, is to let a
copy of the decision be given to the Department of Justice so that it
may review its resolution in the case of Hector Tinga.
Alternatively, accused-appellant prays that he be held guilty
merely as an accomplice. This cannot be done. Art. 18 of the Revised
Penal Code defines an accomplice as a person who, not being a principal
in the commission of a felony, cooperates in the execution of the
offense by previous or simultaneous acts. On the other hand, Art. 17
thereof provides that principals are: (1) those who take a direct part
in the execution of the act; (2) those who directly force or induce
others to commit it; and (3) those who cooperate in the commission of
the offense by another act without which it would not have been
accomplished.[40]
The evidence shows that accused-appellant was indeed a principal
in the commission of the crime charged in this case. Though it was
Tinga who produced the two plastic packets of shabu, it was
accused-appellant who delivered the same to the buy-bust team. He was
the one who asked for payment, who received the same, and who counted it
in the presence of the buy-bust team. It is undeniable that
accused-appellant directly participated in the illegal sale of the shabu. Consequently, his conviction must be upheld.
WHEREFORE, the decision of the Regional Trial Court, Branch 262, Pasig City is AFFIRMED in toto.
Let a copy of this decision be furnished the Honorable Secretary
of Justice for whatever action he may deem necessary to take in the case
of Hector Tinga.
SO ORDERED.
Quisumbing, Buena, and De Leon, Jr., JJ., concur.
Bellosillo, J. (Chairman), on leave.
[1] Per Judge Gregory S. Ong.
[2] Rollo, p. 5.
[3] TSN, pp. 2-5, Aug. 14, 1996.
[4] TSN (Reynaldo Esmeralda), p. 7, Aug. 14,1996; TSN (Timoteo Rejano), p. 5, Sept. 10, 1996.
[5] Id., pp. 7-8; Id..
[6] Id., p. 9; Id., p. 13.
[7] Exh. G; Records, p. 170.
[8] Exh. H; Id., p. 171.
[9] TSN (Timoteo Rejano), pp. 6-28, Sept. 10, 1996.
[10] TSN (Reynaldo Esmeralda), pp. 14-22, Aug. 14, 1996 ; TSN (Regner Peneza), pp. 5-9, Nov. 11, 1996.
[11] Id., pp. 22-24;
TSN (Timoteo Rejano), pp. 7-9, Sept. 23, 1996; TSN (Regner Peneza), pp.
9-10, Nov. 11, 1996; TSN (Auralyn Pascual), pp. 6-8, Nov. 18, 1996.
[12] Exh. J; Records, p. 22.
[13] TSN (Reynaldo Esmeralda), p. 3, Sept. 4, 1996; TSN (Timoteo Rejano), p. 10, Sept. 17, 1996.
[14] Exhs. C and C-1, respectively, are in the trial court’s custody per the Certification dated Oct. 10, 1997; Records, p. 282.
[15] Exh. C-2; Id.
[16] Exh. A; Records, p. 167.
[17] Exh. D; Id., p. 168.
[18] Rollo, p.6.
[19] TSN (Reynaldo Esmeralda), p. 21, Aug. 14, 1996.
[20] TSN (Arnel Montano), pp. 3-29, May 6, 1996.
[21] Id., pp. 32-33.
[22] Id., pp. 49-51.
[23] TSN (Aurora Montano), pp. 3-17, Jan. 29, 1997.
[24] Id., pp. 17-33.
[25] Rollo, pp. 17-31.
[26] Id., p. 17.
[27] Brief for the Appellant, p. 1; Rollo, p. 59.
[28] Reply Brief for the Appellant, p. 15.
[29] People v. Cueno, 298 SCRA 621 (1998); People v. De Vera, 275 SCRA 87 (1997).
[30] TSN (Reynaldo
Esmeralda), p. 15, Aug. 14, 1996; TSN (Timoteo Rejano), pp. 7-8, Sept.
10, 1996; TSN (Auralyn Pascual), p. 7, Nov. 18, 1996.
[31] Id., p. 4; Id., p. 24; TSN (Regner Peneza), pp. 10-11, Nov. 11, 1996.
[32] TSN, pp. 4-5, Aug. 14, 1996.
[33] People v. Encinada, 280 SCRA 72 (1997).
[34] TSN (Reynaldo Esmeralda), p. 19, Aug. 14, 1996; TSN (Regner Peneza), p. 24, Nov. 11, 1996.
[35] Id., p. 20.
[36] People v. Atop,
286 SCRA 157 (1998); People v. Caisip, 290 SCRA 451 (1998); People v. De
Vera, 275 SCRA 87 (1997); People v. Flores, 252 SCRA 31 (1996); People
v. Brocamonte, 257 SCRA 380 (1996).
[37] People v. Guarin, 259 SCRA 34 (1996); People v. Buemio, 265 SCRA 582 (1996).
[38] Mallari v. Court of Appeals, 265 SCRA 456 (1996); People v. Jain, 254 SCRA 686 (1996).
[39] People v. Juatan, 260 SCRA 532 (1996).
[40] People v. Galapin, 293 SCRA 474 (1998).