PEOPLE OF THE PHILIPPINES PLAINTIFF-APPELLEE, VS. ALBERTO DOROJA Y PACANSA, DEFENDANT-APPELLANT.

Alberto Doroja appeals from the 17th September 1986 Decision^[1]
of the Regional Trial Court of Manila, Branch 49, convicting him of a violation
of Section 4, Article II, in relation to Sec. 21(b), Art. IV, of Republic Act
No. 6425, also known as the Dangerous Drugs Act of 1972, as amended by
Presidential Decree No. 1675, and imposing on him the penalty of life
imprisonment and a fine of P30,000 plus costs (Criminal Case No. 84-24152).

Appellant was arrested by a Narcotics Command (NARCOM) team,
headed by a certain Capt. Manzano, in his residence at 2377 Tenorio Street, Sta.
Ana, Manila, following a buy-bust operation. In due time, the following information was filed; viz:

“The undersigned accuses ALBERTO DOROJA y PACANSA of a
violation of Sec. 4, Art. II in relation to Sec. 21(b), Art. IV, Republic Act
6425, as amended by PD 1675, as follows:

“That on or about February 10, 1984, in the City of Manila,
Philippines, the said accused, conspiring and confederating together with one whose true name, identity and
present whereabouts are still unknown
and mutually helping one another, not being authorized by law to sell, deliver,
give away to another or distribute any prohibited drug, did then and there
wilfully and unlawfully sell, deliver and give away to a Narcom poseur-buyer
two (2) aluminum foils containing dried marijuana leaves, which is a prohibited
drug.

“Contrary to law.”

On arraignment, Alberto pleaded,
“NOT GUILTY,” to the offense charged.

The prosecution submitted its evidence; narrated briefly –

At around 3:30 in the afternoon of 10 February 1984, the
commanding officer of the NARCOM received a confidential information^[2] that two brothers, later identified to be Alberto Doroja and Pedro
Doroja (now deceased) were engaged in selling dried marijuana leaves along
Tenorio Street, Sta. Ana, Manila. The
commanding officer promptly organized and dispatched a “buy-bust”
team. The group proceeded as directed,
with Carlos Molina, a regular member of the NARCOM, as poseur-buyer, to the
address provided by the informant.

Molina was introduced to Alberto and Pedro in front of their
house.^[3]
The brothers asked Molina how much marijuana he^[4]
wanted to buy. Molina replied that he
was “willing to buy P20.00 worth of marijuana leaves.”^[5]
The two brothers then entered their house; minutes later, Alberto came out
holding two aluminum foils which he handed over to Molina.^[6] At
Molina’s pre­arranged signal, the other members of the team moved in and
arrested Alberto.

The sale was concluded approximately three meters away from
Alberto’s residence, located at the interior of a squatters’ area, where the
team forthwith likewise conducted a search. Barangay councilman Dionisio and Alberto witnessed the search. The group found in the room of Pedro^[7]
dried marijuana leaves and marijuana sticks contained in a milk can.

The team brought Alberto to their Unit and the confiscated
marijuana to the Narcotics Investigation Section for proper disposition. Pedro somehow eluded arrest.^[8]

Lina Sarmiento, a forensic chemist at the Philippine Constabulary
Crime Laboratory, upon written request, examined the confiscated articles. The specimen consisted of eight (8) aluminum
foils with pieces of rolling paper and suspected dried marijuana fruiting tops
weighing 10.7 grams, fifteen (15) sticks of suspected marijuana cigarettes
wrapped with a piece of white paper contained in a milk can, and two (2)
aluminum foils of rolling paper and dried suspected marijuana fruiting tops
with a total weight of 2.5 grams. A qualitative examination on these items by
Sarmiento yielded positive result for marijuana.^[9]

The defense presented Francisco Dionisio, a barangay councilman
in Sta. Ana, Manila, who testified that, at around one o’clock in the afternoon
of 10 February 1984, while he was home resting, he was suddenly aroused from
sleep by his son, the latter exclaiming, “Father, there are many people
carrying guns.” Dionisio hurriedly went down. A man, whom he later identified to be a certain Capt. Manzano,
requested the councilman to assist in conducting a search in one of the nearby
houses. Dionisio, together with Capt.
Manzano’s team, proceeded to the house of accused Alberto and Pedro. There, the group found Molina and Magno
already undertaking a search. He
observed that Alberto, holding his child, was freely moving in and about the
house. Dionisio inquired whether the
police officers had any search warrant. Having been informed that they had none, Dionisio remarked,
“Captain, you have no search warrant and why are you doing that?”
Forthwith, Capt. Manzano summoned the two
policemen to get outside the house.^[10]
Capt. Manzano then showed Dionisio a sketch, indicating thereon a room of the
house, which they were “interested” to take a look at. The room belonged to Pedro, which was about
twenty (20) feet away from Alberto’s room. When the team went inside Pedro’s room, Dionisio saw on top of a pillow
a can of Bonna milk containing nine sticks and seven leaves of marijuana. He handed the can and its contents over to
Molina. The latter thereupon issued two
signed forms evidencing the confiscation of the articles. Alberto was “invited” to join the team
in proceeding to Camp Crame.

Alberto, testifying in his own defense, said that he was at home
taking care of his child in the afternoon of 10 February 1984 when several
persons suddenly kicked the door open. Nine policemen came in, among them Molina, Orlando Mapunuan and Capt.
Manzano.^[11]
Without showing any search warrant, the police officers began to search the
house. The search yielded negative
results. Nonetheless, he was asked to
join the group to Camp Crame. On
cross-examination, Alberto stated that he was indicted for drug-pushing by
Manzano, Molina and Magno only because they failed to get P500.00 from him.^[12]

On 17 September 1986, the trial court rendered its decision
convicting Alberto of the crime charged. After the promulgation of the decision on 15 October 1986, Pedro Doroja,
who happened to be in the courtroom, shouted, “Walang kasalanan ang
kapatid ko. Palayain ninyo ang kapatid
ko. Hahatulan wala namang kasalanan.^[13]
The court ordered his incarceration for direct contempt.^[14]
Pedro was ordered released from custody on 09 March 1987.^[15]
The warden, however, mistakenly released Alberto instead of Pedro.^[16]
Pedro was later released when Alberto surrendered to the authorities. On 09 May 1987, Pedro died.^[17]
On 11 September 1987, the lower court denied Alberto’s “motion to re-open
the case for additional direct examination of the accused.” The court^[18]
said:

“The belated claim of Pedro Doroja that he, not the Accused,
should be convicted for the crime charged is, to the Court, merely an
afterthought. If it were true that he,
not the Accused, was guilty for the crime charged, he has not explained to the
Court as to why it was only after the Court promulgated its Decision convicting
the Accused for the crime charged, did he come forward and confess guilt for
the crime charged against his brother, the Accused, in this case. Pedro Doroja could have come forward, during
the trial of this case, and testified in favor of the Accused and confessed to
the commission of the crime. He kept
silent. This renders his claim that he,
not the Accused, is liable for the crime charged, unreliable and
incredible.”^[19]

Alberto interposed the instant appeal, contending that the lower
court erred in admitting and considering illegally obtained evidence, and in
convicting him despite the failure of the prosecution to adduce sufficient
evidence to sustain the conviction.

The Solicitor General
likewise pleads for appellant’s exoneration.

Even if we were to agree that the confiscated marijuana, having
been obtained during a warrantless search, is inadmissible in evidence against
Pedro (now deceased), the remaining evidence on record insofar as the accused
appellant himself is concerned, however, is sufficient to warrant his
conviction by the trial court. Ample
evidence has been presented to independently establish the buy-bust operation
which netted two (2) aluminum foils with pieces of rolling paper and dried
marijuana leaves with a total weight of 2.5
grams. No proof has been adduced to put
to doubt the credibility of the prosecution witnesses, all law enforcement
officers, who have undertaken the buy-bust operation in the regular performance
of their official duties.^[20] In countless cases, the Court has held that
the matter of credibility is the province of the trial court to determine, the
latter being in the best position to observe the demeanor of witnesses at the
time their declarations before it are made. The bare denial by appellant, a most common defense raised in buy-bust
operations, cannot overcome positive evidence to the contrary. Like defenses have almost invariably been
similarly turned down in previous cases.^[21]

The only significant
discrepancy in the prosecution evidence was that while Molina did point to
Alberto as having received the buy-bust money,^[22] Magno, upon the other hand, said it was
Pedro who received it.^[23] Such variance, notwithstanding, it was clear
that after Molina, the poseur-buyer, gave the money (whether to Alberto or
Pedro), it was Alberto who later returned to hand over to Molina the two
aluminum foils of marijuana.

Under Rep. Act No. 6425, the essence of the offense is the act of
delivery.^[24]
We have since held that what really counts is that the poseur-buyer receives
the prohibited drug from the accused.^[25] The fact
that the money used in the buy-bust operation is not accounted for or presented
in court does not militate against the prosecution’s case.^[26]

Appellant’s claim of alleged extortion by the law enforcers is, too, a standard excuse in the
prosecution of drug cases.^[27]
Appellant’s failure to offer independent corroborating evidence suggests that
his defense of extortion is either a fabrication or an afterthought.^[28]
We have also since observed that if, indeed, an extortion attempt is made, it
should behoove, the victim to come forward with the proper charges against the
culprits.^[29]

In view of the recent enactment (on 13 December 1993) of Republic
Act (“R.A.”) No. 7659,^[30] it
would be well to delve at least briefly into the proper imposable penalty. The Dangerous Drugs Act of 1972, as now
amended by Section 17 of Republic Act No. 7659,^[31]
provides:

“Sec. 17. Section 20,
Article IV of Republic Act No. 6425, as amended, known as the Dangerous Drugs
Act of 1972, is hereby amended to read as follows:

“Sec. 20. Application
of Penalties, Confiscation and Forfeiture of the Proceeds or instrument of the
Crime. – The penalties for offenses
under Section 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15 and 16
of Article III of this Act shall be Applied if the dangerous drugs involved is
in any of the following quantities:

1. 40 grams or more of
opium;

2. 40 grams or more of
morphine;

3. 200 grams or more of shabu or
methylamphetamine hydrochloride;

4. 40 grams or more of
heroin;

5. 750 grams or more of indian hemp or
marijuana;

6. 50 grams or more of marijuana resin or
marijuana resin oil;

7. 40 grams or more of cocaine or cocaine
hydrochloride; or;

8.     In the case of other dangerous drugs, the
quantity of which is far beyond therapeutic requirements, as determined and
promulgated by the Dangerous Drugs Board, after public consultation/hearings
conducted for the purpose.

“Otherwise, if the quantity involved is less than the
foregoing quantities, the penalty shall range from prision correccional to reclusion perpetua depending upon the quantity.”

In People vs. Martin Simon (G.R. No.
93028, 29 July 1994), this Court ruled (a) that the amendatory law, being more
lenient and favorable to the accused than the original provisions of the
Dangerous Drugs Act, should be accorded retroactive application,^[32]
and (b) that pertinent provisions of the Revised Penal Code, in consonance with
Article 10 thereof, as well as the Indeterminate Sentence Law, may now be
considered suppletory to the Dangerous Drugs Act.

The quantity of dried marijuana leaves, subject of sale by
accused-appellant, has been found to have a total weight of 2.5 grams; there
being neither mitigating nor aggravating circumstance, the applicable penalty
would be prision correccional in its medium period. Applying the Indeterminate Sentence Law,
still in conformity with the Martin Simon case, appellant Alberta
Doroja y Pacansa may be sentenced to an imprisonment term ranging from a
minimum of six (6) months of arresto mayor to a maximum of two
(2) years and four (4) months of prision correccional in its
medium period.

Moreover, Section 17 of Republic Act No. 7659 does not prescribe
any fine in cases involving a quantity of less than 750 grains of Indian hemp
or marijuana; accordingly, the fine of P30,000.00 imposed by the trial court
must now be deleted.

WHEREFORE, the decision of 17 September 1986 convicting
appellant, Alberto Doroja y Pacansa, of the crime of violation of Sec. 4, Art.
II, in relation to Section 21(b), Art. IV, of Rep. Act No. 6425 is hereby
AFFIRMED, except that the penalty properly imposable, and hereby
accordingly imposed, on appellant Alberto Doroja y Pacansa is REDUCED to an
indeterminate period ranging from six (6) months of arresto mayor,
as minimum, to two (2) years and four (4) months of prision correccional,
as maximum. The fine imposed on
accused-appellant by the trial court is deleted. Costs against appellant.

SO ORDERED.

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

^[1]
Penned by Judge Oscar C. Fernandez.

^[2]
According to Rolando Magno, a patrolman assigned at NARCOM and a member of the
team, a certain “Boy” was their informant.

^[3]
The records do not show who introduced Molina to the suspects but it is clear
that the informer was present during the operation, and he was about two or
three meters away from Molina (TSN, August 31, 1984, p. 3).

^[4]
Molina testified thus: “They asked
us how much are we going to buy x x x.” (TSN, August 24, 1984, p.
8).

^[5]
TSN, August 24, 1984, p. 8.

^[6]
TSN, September 7, 1984, p. 3.

^[7]
Ibid., p. 5.

^[8]
Ibid., p. 3.

^[9]
Exh. B.

^[10]
TSN, September 6, 1985, pp. 4-9.

^[11]
TSN, September 20, 1985, p. 4.

^[12]
Ibid., p. 6.

^[13]
TSN, October 15, 1986, p. 5.

^[14]
Records, p. 93.

^[15]
Ibid., p. 99.

^[16]
Ibid., p. 109.

^[17]
Ibid., p. 125.

^[18]
Presided by Judge Romeo J. Callejo.

^[19]
Record, p. 148.

^[20]
People v. Viloria, Jr., 191 SCRA 777.

^[21]
People v. Ramos, 186 SCRA 184.

^[22]
TSN, September 7, 1984, p. 4.

^[23]
TSN, August 31, 1984, p. 3.

^[24]
People v. Buendia, 210 SCRA 531.

^[25]
People v. William, 209 SCRA 808, 815 quoting People v. Rumeral,
200 SCRA 194.

^[26]
People v. Alerta, 198 SCRA 656, 661, citing People v. Marco Polo,
147 SCRA 551.

^[27]
People v. Tejada, 170 SCRA 497.

^[28]
People v. Bolasa, 209 SCRA 476.

^[29]
People v. Mauyao, 207 SCRA 732.

^[30]
Entitled “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.”

^[31]
Official Gazette, 17 January 1994, 321.

^[32]
Article 22, Revised Penal Code; Escalante vs. Santos, 56 Phil. 483;
People vs. Alcaraz, 56 Phil. 520.