PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ROMEO F. REMOROSA, ACCUSED-APPELLANT.

Romeo Remorosa
y Fernandez seeks the reversal of the judgment promulgated on November
13, 1987 by the
Regional Trial Court, Branch 56,
Makati, Metro Manila*, in Criminal Case No. 24093.

x x x Acting on
the reported rampant drug pushing at Barangay Pitogo, Makati, Metro Manila, the
Special Operation Group, Anti-Narcotics Unit, of the Makati
Police Station launched a surveillance for five days, from May 16 to 20, 1986, in the said place and it was found out
that accused Romeo Remorosa y Fernandez, alias “Ameng” was one of those selling prohibited drugs.  Upon instruction of P/Lt. Ramon Salido Jr. who is the OIC of the Anti-Narcotics Unit, a
buy-bust operation was conducted along Imelda Avenue,
Brgy. Pitogo, Makati, Metro Manila on May 21, 1986, at about 4:00 o’clock
in the afternoon by the team composed of Pfc. Virgilio
Padua, Det. Hermie Ortiz, Det. Nicanor Candolesas,
Det. Antonio Manalastas,
and Det. Henry dela
Cruz.  Upon arrival at the place, Det. Henry dela Cruz, who was
assigned as poseur-buyer, approached the accused, while the four others
positioned themselves in strategic locations where they could clearly see the
transaction between the two.  As Pfc. De
la Cruz approached, the accused asked
him “Pare, iiskor ka ba”
and he answered
“yes”.  He gave the accused the
amount of P10.00 (two P5.00 bills, Exhibits B & B-1) and the latter
delivered to him one (1) tea bag of marijuana (Exh.
D-1).  Immediately thereafter, Pfc. Dela Cruz gave the pre-arranged signal and the other four
members of the operatives rushed towards them and they arrested the accused
after identifying themselves as police officers.  The two P5.00 bills were recovered from the
accused.  They brought him to the police
headquarters for investigation.^[1]

The contents of the
teabag were presented to the NBI for examination, the result of which showed:

xxx                               xxx                               xxx

Forensic Chemist Evelyn F. Pizarro who conducted the examinations
indicated the findings in her Dangerous Drugs Report No. DDM-86-978 (Exh. “A”) that microscopic, chemical and
chromatographic examinations made on the specimen gave positive results for
marijuana.  Det.
Ramon (actually Marlon) Almoguerra who was the
officer on case prepared and submitted his investigation report (Exh. “C”).^[2]

Accordingly, an
information^[3] dated May 27, 1986 for drug pushing was filed against the
appellant penalized under Sec. 4, Art. II of R.A. 6425, as amended, otherwise
known as the Dangerous Drugs Act of 1972.

The defense gave a
different account of the incident:

x x x At about
4:30 p.m. on May 21, 1986, while he was playing cards at the porch of their
house located at 4248 Imelda Avenue, Pitogo, Makati, Metro Manila, together with his friends named Arnel Malbano, Ric Villamor and Rosalinda Remorosa, his sister, five policemen, among whom was
Policeman Henry Ortiz, came up and they asked for the whereabouts of Nelson Beato who was his friend. 
He accompanied the policemen to the house of Nelson Beato
which was only three houses away.  With
the permission of Nelson Beato’s mother, he went
straight to the room of Nelson Beato, while the
policemen who were following him stayed at the door.  At that moment, Nelson Beato
was wrapping marijuana with typewriting paper. 
When he informed Nelson Beato that there were
policemen with him, the latter gathered all the marijuana and attempted to
throw it outside but he was able to grab it and he gave the same to Pat. Henry
Ortiz.  Thereafter, he was brought to the
Police Headquarters while Nelson Beato was
interrogated at the jeep by Pat. Henry Ortiz and was being asked to give an amount of P3,000.00.  Nelson Beato told
the police that he had P3,000.00 but they should wait for his mother.

x x x (B)efore he accompanied the policemen to the house of Nelson Beato, he saw the latter (Nelson Beato)
selling marijuana to a barriomate.  He identified the tea bags of marijuana
marked as Exhibits D-1 to D-19 as the same marijuana which he grabbed from
Nelson Beato and he turned over to the policemen.^[4]

After trial, the court a quo adjudged the accused guilty of the
crime charged, and sentenced him to reclusion perpetua* plus a fine of twenty five thousand pesos.^[5]

From this disposition, the accused submits the following
assignment of errors:

I

The lower court erred in acting with manifest and clear bias and prejudice against the accused
during the trial of the case.

 II

The lower court erred when it considered the uncorroborated,
inconsistent and contradictory testimony of prosecution witness, Pfc. HENRY
DELA CRUZ, as the primary basis for the conviction of appellant when such
evidence is insufficient to overcome the constitutional presumption of
innocence.

III

The lower court erred when it failed to consider the testimonial
admissions of prosecution’s witnesses which corroborate the testimony of the
accused, and sufficiently casts
[sic] serious doubts as to the truth of the alleged buy-bust operation which
led to the arrest of the accused.

IV

The lower court erred when it admitted in evidence the money bills
marked as Exhibits “B” and “B-1”.

V

The lower court erred in concluding that the unwillingness of the
persons mentioned by the accused with whom he was playing cards in his house
when the policemen came, to testify for the accused implies falsity of his
version.

VI

The lower court erred in holding the accused ROMEO REMOROSA guilty beyond
reasonable doubt of having sold Marijuana, in violation of Article II, Section
4, of Republic Act No. 6425.^[6]

First, on error number one.

It is not true, as the appellant complains, that the trial court
did not rule on the petition of the accused
for reinvestigation.  The trial
court resolved the same in its Order dated October 13, 1986.^[7]
Nor is there basis for the appellant’s charge that the trial court did not rule on the offer of the evidence
of the prosecution.  The Order dated September 7, 1987^[8]
attests that the trial court did admit the prosecution evidence.

While it is true that there is no formal offer of evidence for
the accused attached to the record and that there is no order admitting the
evidence of the defense, these circumstances alone can not overturn the
presumption that official duty has been regularly performed and that judicial
proceedings are regular.^[9]
In any case, here the records show, in the hearing of October 5, 1986, that the defense rested its
case, the lower court admitted its evidence, and declared the case submitted
for decision.^[10]

The gripe of the appellant that the trial court was too liberal
in granting postponements to the prosecution, but allowed only one resetting in
his favor, thus suggesting partiality on the part of the trial court, deserves
no consideration.  There is no question
that the trial court allowed the prosecution several postponements.  What the appellant forgot was that he had not
objected to those continuances.  The
granting or denial of postponement is within the sound discretion of the trial
court.  In this instance, we are
convinced that the trial court did not abuse such discretion.  And if the appellant had been granted only
one resetting by the trial court, it was because after the termination of the
testimony of the accused, the defense counsel immediately rested the case.

Equally disturbing is the claim of the appellant that the lower
court deprived him of his right to secure the attendance of his witnesses and
of the production of other evidence on his behalf.  In the first instance, the appellant did not
ask for, much less insist on, the said right. 
No motion or request had been filed by his lawyer to compel the attendance
of his witnesses nor the production of documents on his behalf.  How can the lower court be faulted for these
remissions of the accused?  If the
defense counsel believed that there were other witnesses to be presented, he
should have called for them, even by compulsory process.  But he did not.

Moreover, the Court painstakingly re-evaluating the proceedings,
could not find in the actuations of the court a quo what could be construed as
prejudicial to the rights of the accused. 
Simply, the conduct of the court a
quo was above board.

All told, assigned error number one is without basis.

The rest of the errors assigned can be integrated into the
principal issue of whether or
not the trial court erred in determining
the credibility of the evidence presented and the weight to be given to it.

Ordinarily, the trial court’s findings of fact are accorded
substantial weight, possessing as it
does the opportunity of discerning whether or not witnesses are telling the
truth,^[11]
by observing their deportment and manner of testifying at the witness
stand.  However, this rule does not apply
where the trial court overlooked certain facts of substance and value which
would affect the result of the
case.^[12]
Another entrenched rule is that the testimonies of prosecution witnesses who
are law enforcers are given credence for it is presumed that they were performing
their duty in the absence of convincing proof to the contrary.^[13]

In this case, the exception to the rule finds application.  There is “convincing proof to the
contrary” generated by the conflicting statements of Pat. de la Cruz.  In his examination-in-chief, he reconstructed
the events that transpired on May 21,
1986 in this manner:

Upon instruction of P/Lt. Ramon Salido,
Jr., a buy-bust operation was conducted along Imelda
Avenue, Brgy. Pitogo, Makati, M.M., on May 21,
1986, at about 4:00 o’clock in the afternoon by the team composed of Pfc. Virgilio Padua, Det. Hermie Ortiz, Det. Nicanor Candolesas, Det. Antonio Manalastas, and Det. Henry de la Cruz.^[14]
Upon arrival at the place, Det. Henry de la Cruz,
assigned as poseur-buyer, approached the accused, while the other four
positioned themselves in strategic locations where they could clearly see the
transaction between the two.^[15]
As Pfc. de la Cruz approached, the accused asked him, “Pare, iiskor ka ba?”, and he
answered “Yes”.^[16]
He gave the accused the amount of P10.00 (two P5.00 bills, Exhibits B and B-1)
and the latter delivered to him one (1) tea bag of marijuana (Exhibit D-1)^[17]
Immediately thereafter, Pfc. de la Cruz gave the pre-arranged signal and the
other members of the operatives rushed towards them and arrested the accused
after identifying themselves as police officers.  The two P5.00 bills were recovered from the
accused.^[18]

On the basis thereof, an information for felonious selling of one
tea bag containing dried marijuana flowering tops was filed against the
accused.

However, on recall, Pat. de la Cruz testified that in the same
buy-bust operation of May 21, 1986,
eighteen more tea bags of marijuana were likewise confiscated from
appellant.  All in all, nineteen tea bags of marijuana were seized.

Another matter that surfaced was the involvement of one Nelson Beato from whom dried and crushed marijuana leaves wrapped in typewriting paper were
seized.  Emphasis must be made that in the
examination-in-chief of Pat. de la Cruz, not a breath was heard of the participation of Beato
in the buy-bust operation.

(Pat. de la Cruz on recall examination)

FISCAL KALALO:

Q:   Will
you please show to the court, Mr. Witness, which of the marijuana was
confiscated from Nelson Beato?

A:    This
is the one, sir.  (Witness referring to
the marijuana wrapped in a typewriting
paper with initial NAB dated May 21, 1986).

Q:   How
about the marijuana confiscated from accused Romeo Remorosa,
could you please show to the court?

A:    This
is the one, sir.  (Witness referring to
the marijuana contained in red plastic bag).

Q:   Will
you please count, Mr. Witness, how many tea bags of marijuana confiscated from
accused Remorosa?

A:    19
tea bags, sir.

Q:   Where
were these marijuana placed?

A:    They
were placed at the same bag, sir. 
(Witness referring to the red plastic bag)^[19]

The court finds itself asking questions that should have been
asked by the trial court:  At what point
were the eighteen tea bags of marijuana seized from appellant?  Was it before, simultaneous with, or after,
the alleged buy-bust operation?  Was
appellant charged as regards the
eighteen tea bags of marijuana?  If not,
why?  What was the participation of
Nelson Beato? 
Was he also charged?  If not,
why?  It puzzles this Court that the
prosecution simply left the apparent inconsistencies unexplained.  It made no effort at reconciling them.  On the whole, the gaps and omissions in the
evidence of the prosecution do not refer to minor or collateral matters.  These sins of omission cast serious doubt on
the credibility of witness Pat. de la Cruz. 
The net effect–the veracity of the prosecution’s story–has been bemuddled.  The rule
is firm that:

Irreconcilable and unexplained contradictions in the testimonies of
the prosecution witnesses cast doubt on the guilt of appellant^[20]
and his culpability to the crime charged.^[21]

Simply, that moral certainty of appellant’s culpability has not
been attained in this case.  Instead, the
obvious contradictions on material points corroborate and strenghten
appellant’s version of the incident. 
Particularly, the account of the appellant that the one tea bag of
marijuana purportedly sold by him to Pat. de la Cruz and the other eighteen tea
bags of marijuana allegedly confiscated from him actually belonged to Nelson Beato who was collared in his (Beato’s)
residence by the five policemen.  The
appellant knew one of these policemen by the name of Pat. “Henry”
Ortiz.  This policeman was the one to whom the appellant gave the nineteen
tea bags of marijuana.  It is thus clear
that this version of the incident squares with the testimony on recall of Pat.
de la Cruz that nineteen tea bags of marijuana were allegedly seized from the
appellant, the participation of Nelson Beato from
whom marijuana dried leaves wrapped in typewriting paper were confiscated, and
the presence of five policemen, one by the name of Hermie
Ortiz.  Though appellant stated that the
name is “Henry,” it is possible that he was mistaken considering that
Henry and Hermie are idem sonans.

If the inculpatory facts and
circumstances are capable of two or more explanations, one of which is
consistent with the innocence of the accused and the other consistent with his
guilt, then the evidence does not fulfill the test of moral certainty and is
not sufficient to support a conviction.^[22]

In fine, a warning we issued in another case like this one bears
repeating:

x x x (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 least an innocent person is made to suffer the usually severe
penalties for drug offense.^[23]

WHEREFORE, the appealed decision is REVERSED,
and on reasonable doubt, the appellant is hereby ACQUITTED of the crime
charged.

SO ORDERED.

Melencio-Herrera, (Chairman), Paras, Padilla, and Regalado, JJ., concur.

* Hon. Nemesio S. Felix, Presiding Judge.

^[1]
Decision, 2; Rollo
15.

^[2]
Ibid., 15.

^[3]
Ibid., 8.

^[4]
Ibid., 15-16.

* It should be life imprisonment
as provided for under sec. 4, Art. II, R.A. 6425, as amended.

^[5]
Decision, rollo, 17.

^[6]
Ibid., 52-53.

^[7]
Original Record, 44.

^[8]
Ibid., 100.

^[9]
Phil. British Co. Inc. vs. de los
Angeles, L-33720, March 20, 1975.

^[10]
Minutes, Original Record, 120.

^[11]
People vs. Carido, L-32242, November 18, 1988, 167 SCRA 462.

^[12]
People vs. Royeras, G.R. No. 64849, June 29, 1984, 130 SCRA 259.

^[13]
People vs. Sariol, G.R. No. 83809, June 22, 1989, 174 SCRA 237.

^[14]
TSN, June 15, 1987, 5.

^[15]
Ibid., 11

^[16]
Ibid., 14.

^[17]
Ibid., 18.

^[18]
Ibid., 9.

^[19]
TSN, September 2, 1987, 3-4.

^[20]
People vs. Caboverde, No. 66646, April 15, 1988, 160 SCRA 550.

^[21]
People vs. C.F.I. of Rizal, et al., No. 52780,
May 9, 1988, 161 SCRA 249.

^[22]
Cited in People vs. Ale, No. 70998, October 14, 1988, 145 SCRA 50, 64.

^[23]
Ibid., 58-59.