G.R. No. 83329. December 10, 1991
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. OSCAR D. FABIAN, ACCUSED-APPELLANT.
FELICIANO, J.:
Oscar Fabian was charged with selling and delivering methylamphetamine crystals, commonly called “shabu,”
a regulated or prohibited drug.
After arraignment and trial, the court a quo
rendered in due time, on 14 March 1988, a decision finding the accused guilty
of violating Article III, Section 15 of Republic Act No. 6425, as amended, and
sentencing him to life imprisonment and to pay a fine of P20,000.00.
Appellant ascribes the following errors to the trial court:
“1. The lower court erred in admitting as
evidence the alleged two (2) packets of shabu
as the shabu supposedly seized from the
accused when it was never authenticated.
2. The lower court erred in not ruling that the
prosecution failed to prove the guilt of the accused.
3. The trial court erred in admitting as
evidence Exhibit “B,” when there is no proof that accused was advised
of his constitutional right to refuse to sign said exhibit.
4. The lower court erred in not giving
exculpatory weight to the evidence of the defense.”[1]
The “shabu”
was declared forfeited to the Government and ordered turned over to the Dangerous
Drugs Board for proper disposal.
The evidence presented by the People tended to establish the
following facts:
At around 2:00 p.m. on 11 March 1987, an unnamed informant
reported to P/Pfc. Jose S. Basco
of the 13th Narcotics Regional Unit, Narcotics Command, Camp
Crame,
that one Oscar Fabian alias “Boy Pena,” was selling “shabu” in Barangay Pulang-Lupa, Las Piñas, Metro
Manila. After evaluation of the information, a “buy-bust” operation team
was organized, composed of P/Pfc. Basco as team leader, and P/Pfc. Lolita O. Bugarin and
Patrolman Rolando Geronimo as members.
At about 4:30 p.m. of
the same day, Pat. Geronimo acting as “poseur-buyer,” together with
the unnamed informant, met Oscar Fabian outside the latter’s hide-out. After an exchange of pleasantries between
Fabian and the informant, the latter introduced Patrolman Geronimo to the
former as a “good
buyer.” Geronimo asked Fabian whether the latter had “shabu”
to sell. Fabian answered in the
affirmative and drew from his right front pants’ pocket an aluminum foil packet[2]
and tossed it to Geronimo. Geronimo
ascertained that the contents of the aluminum foil packet were “shabu“
and then gave the pre-arranged signal consisting of scratching his head with
his right hand. The other team members who
had been observing Patrolman Geronimo and appellant Fabian from a distance,
closed in immediately and proceeded to search the person of appellant
Fabian. The search yielded another tin
foil packet[3]
from the same front pants’ pocket of Fabian.
P/Pfc. Basco looked
at the contents of the packet and put it away.
P/Pfc. Basco
apprised appellant Fabian of his constitutional rights and asked him to sign
the on-the-spot receipt for the
confiscated tin foil packets. Appellant
was then brought to the 13th Narcotics Command Headquarters at Camp
Crame
where he was referred to Patrolman Wenceslao Leaño Jr. for investigation.
At 12:45 a.m., 12 March 1987, Patrolman Leaño took custody of the two (2) tin foil packets attached
by tape to a sheet of bond paper,[4]
the receipt for the confiscated items signed by appellant Fabian,[5]
the joint affidavit of arrest signed by the arresting officers[6]
and the person of appellant.[7]
A request for chemical analysis of the substance found in the confiscated tin
foil packets attached to the sheet of bond paper was sent in to the Philippine
Constabulary Crime Laboratory at 9:00 o’clock
a.m. of the same day.
During the investigation, Patrolman Leaño
asked appellant whether the signature appearing on the confiscation receipt was
his. Appellant answered in the
affirmative. Patrolman Leaño then apprised him of his constitutional rights and
asked him if he wished to exercise them.
Appellant answered in the affirmative and henceforth remained silent.
Appellant presented a different version of the facts. He said that on 11 March 1987, as he was resting in his house after the
day’s work. Patrolman Geronimo came by
and inquired whether he (Fabian) had noticed anyone running by his house. Fabian replied that he had not noticed anyone
passing or running by his house;
Patrolman Geronimo left and presumably continued his search elsewhere.
Shortly however, and quite suddenly, Patrolman Geronimo with some
companions showed up again at Fabian’s
house. They kicked in the door of the
house. Inside, Patrolman Geronimo
demanded that appellant Fabian produce the “shabu” the latter was hiding. Patrolman Geronimo’s companions searched
Fabian’s house, destroying some of the walls in the process, but found
nothing. Patrolman Geronimo and
companion allegedly took a table clock and an “alkansiya”
belonging to Fabian’s wife, and arrested Fabian as well. Fabian was brought to Camp
Crame with other persons who appeared to
have been likewise arrested.
Fabian continued that at Camp
Crame,
Patrolman Geronimo asked him for P4,000.00
so that Fabian could be released with other persons who had already paid
a similar amount. Because Fabian had no
money to give, he was not released but was subsequently transferred to the Las Piñas Municipal Jail.[8]
Appellant, moreover, pointed to the report of Forensic Chemist Lina C. Sarmiento, which
described the specimens submitted to her for chemical analysis in the following
terms:
“Ex. A — 28.9 milligrams of white crystals wrapped
with aluminum foil and placed in a small transparent plastic bag.
Ex. B — 2.1 milligrams of white crystals wrapped with
aluminum foil and placed in a small transparent plastic bag.” (Underscoring
supplied)
Appellant’s counsel adverted to the fact
that in Exhibit “B”, to which Exhibits “B-1” and
“B-2” were attached and taped, described said Exhibits
“B-1” and “B-2” as being “approximately 1/8 of a gram of
suspected “shabu” each. Since 1/8 of a gram is equivalent to 125
milligrams, appellant suggests that the differences in the weights of tin foil
packets which were examined by Forensic Chemist Sarmiento
indicated that the original packets received or taken from appellant Fabian may
well have been substituted with other aluminum foil packets by the time they
had reached the PC Crime Laboratory.
The force of this suggestion
is more apparent than real. The
members of the police “buy-bust” team who went to Barangay
Pulang-Lupa, Las Piñas,
were obviously not equipped with scientific precision weighing
instruments. The description of the packets
as constituting approximately 1/8 of a gram of suspected “shabu” was, in all probability, as pointed out
by the Solicitor General, due to the fact — well-known to the police officers
— that “shabu” is commonly sold in
the streets in commercial packets of approximately 1/8 of a gram each. The arresting officers merely assumed that
the packets derived from appellant Fabian
were of “normal” commercial weight. The difference between 125 milligrams and
28.9 or 2.1 milligrams is too minute to be detectable by hand.
Appellant Fabian’s principal argument relates to the alleged failure of the prosecution
sufficiently to authenticate what appellant described as the “chain of
custody” over the “shabu”
allegedly seized from appellant. Fabian
argues that the prosecution had failed to trace or account for the movement of
the seized tin foil packets, obviously to cast doubt on whether the tin foil
packets found to contain “shabu”
were in fact the very same packets seized from appellant Fabian by the
arresting officers. One of the packets
was tossed by Fabian to Patrolman Geronimo while the other was taken by P/Pfc. Basco from the person of
Fabian when the latter was searched on the scene. Both packets were held by P/Pfc. Basco who in turn delivered
them to Patrolman Leaño at Camp
Crame, as
the investigating officer assigned to the case.
Patrolman Leaño sent the tin foil packets
later in the morning to the PC Crime Laboratory. The packets were handcarried
by one Ignacio Larigado (referred to as a
“courier” in the trial court’s decision) and delivered to P/Capt. Lina C. Sarmiento, the Forensic
Chemist who conducted a chemical analysis of the contents of the packets. Not all the persons through whose hands the
tin foil packets actually or physically passed, were presented as witnesses
before the trial court to authenticate the tin foil packets. Thus, appellant argues, the process of
authentication was incomplete.
The Court is not persuaded.
The circumstance that some of the persons through whose hands the seized
items had passed were not presented as witnesses before the trial court, is not
by itself sufficient to show that the contents of the packets had been
switched, or that the packets which had been taken from appellant Fabian had
been substituted with other packets containing “shabu.”
In the first place, all the persons who obtained and received the tin foil
packets did so in the course of performance
of official duties. The
presumption that official duty was regularly
performed was not overthrown by appellant’s counsel. There was no showing that the original
packets contained some substance other than “shabu”
and that the original packets were switched for the packets actually delivered
to and chemically examined by Police Chemist Lina Sarmiento. It is not
indispensable that the prosecution allege and prove every single fact of the
case.[9]
Once the facts upon which is presumption established by law stands are shown,
it is incumbent upon the adverse party to overthrow that presumption by
sufficient and convincing evidence: a
mere allegation is not evidence and is not adequate to dissolve the
presumption.[10]
In the instant case, the arresting officers are presumed to have regularly and
faithfully performed their respective duties.
There is nothing in the record to show that they changed the innocent
contents of the tin foil packets originally taken from appellant Fabian with
packets containing the prohibited drug “shabu.”
There is further no evidence on record tending to show that the testimonies of
all the prosecution witnesses were pure fabrication. No sinister ulterior motives on the part of
the arresting officers or any of the prosecution witnesses were shown by
appellant.[11]
Appellant asks us to draw all kinds of inferences from the fact that the
original arresting officer did not personally hand-deliver the confiscated
packets to the PC Crime Laboratory to avoid any possibility of tampering with
or switching the packets and their contents with constituted evidence. But, as pointed out by the Solicitor General:
“There are proper procedures which apprehending officers must
follow with regard to the criminals as well as to the disposition of the
evidence seized in connection with their arrest. These procedures must be followed for the
smooth administration of police functions.
It would have been highly irregular for Geronimo to have personally
brought the packets of “shabu” to the chemist and in the process, bypassing Leano, the investigating officer assigned to the case. Geronimo has no authority to directly submit
items for testing.”[12]
Appellant also assails the “buy-bust” operation as
illegal because the “poseur-buyer” had not been given any money for
the purchase of the “shabu” and because
the identity of the alleged informant was not revealed in court. Appellant contended further that it was
“incredible” that appellant as a supposed drug pusher would sell
“shabu” right in front of his own
home.
The Court has several times stressed that the offense of illegal
sale of a prohibited drug is committed once a sale transaction was
consummated. The presence of actual
monetary consideration is not indispensable for the existence of the offense. In People v. de la Cruz,[13]
the Court stated that when a police officer went through the motions of buying
prohibited drugs and his offer to buy was accepted by the accused-seller, the
crime was consummated by mere delivery
of the drug purchased. The fact that no
money was actually delivered by the pretended buyer to the accused-seller did
not prevent the offense from being committed.[14]
That the identity of the informant was not disclosed and the
informant presented in court, does not fatally prejudice the People’s
case. The testimony of the unnamed informant
would have been corroborative at best.
The mounting of the “buy-bust” operation was sufficiently
established by Pat. Geronimo who had personal knowledge thereof. The trial court found the testimony of
Patrolman Geronimo convincing and quite adequate:
“x x
x. By
and large, the testimony of Pat. Rolando Geronimo, the poseur-buyer, was candid and straight forward. He categorically and positively declared it
was accused who delivered to him the aluminum foil which turned out to contain
approximately [1/8] gram of shabu. Thereupon, accused was arrested by Basco and Bugarin. Found in his person was another aluminum foil
likewise containing shabu. Geronimo’s graphic narration of how this
event came about is logical and reasonable.
x x x.”[15] (Underscoring added)
Moreover, we are unable to accord
substantial weight to appellant’s argument that it was “incredible”
and “ridiculous” for a drug pusher to sell “shabu”
in front of his house and to a stranger.
The Court has noted many times in the past that retail drug pushers sell
their prohibited wares to customers, be they strangers or not, in private as
well as in public places.[16]
In fact, carrying out such sales in public tends to dissimulate the criminal
nature of the transaction.
Appellant also pointed to supposed inconsistencies in the
testimonies of the prosecution witnesses.
Those inconsistencies, if that is what they were, were however minor and
inconsequential in character, having been sufficiently explained during the
trial and the explanations having been accepted by the trial court.[17]
The supposed inconsistencies did not in any case affect the credibility of the
witnesses referred to. The applicable
principle is that the assessments by the trial court of the credibility and
sincerity of the various witnesses who testified before the court are accorded
great respect by appellate courts.
Appellant finally assails the admission into the record of
Exhibit “B,” the on-the-spot receipt signed on 11 March 1987 by appellant at the time of his
arrest. Appellant contends that Exhibit
“B” should not have been admitted because there was no proof that he
had signed said receipt after, rather than before, he was informed of
his constitutional rights.
Exhibit “B” is not to be confused with Exhibit
“E.” While both Exhibits are
confiscation receipts signed by the appellant, Exhibit “B” is a
handwritten receipt which included the items seized from appellant. In contrast, Exhibit “E” is a
printed form, which included a description (but not the actual items) of what
had been seized from appellant. Exhibit
“E” was in fact excluded by the court a quo during trial upon the
ground that it was in the nature of an extrajudicial confession which had been
given after an uncounseled waiver of appellant’s
constitutional rights. Appellant is
trying similarly to exclude from the record Exhibit “B.”
Exhibit “B” is a sheet of white bond paper on which the
two (2) tin foil packets (Exhibits “B-1” and “B-2”) seized
from appellant were taped after each had been placed in a small bag of clear
plastic. Exhibit “B” also
contained the following statements handwritten in block letters:
“‘B’ — 11 March 1987
(1) approximate 1/8
of a gram of suspected ‘shabu‘ w/c was delivered with
intent to sell by (a) Boy Pena (Oscar Fabian y Divina)
of Nr. 369 Pulang Lupa, Las
Piñas, Metro Manila, on or about 11th March 87 ‘B-1’
(2) approximately
1/8 of a gram of suspected ‘shabu‘ w/c was recovered
from suspect’s right front packet (maong pants) ‘B-2’
Oscar D. Fabian (Signature)
OSCAR FABIAN Y DIVINA
Suspect
(Boy Pena)”[18]
We
do not think above argument has any necessary impact on the conclusions
reached by the trial court. Assuming (arguendo merely) that the descriptive statements
found in Exhibit “B,” when coupled with the signature of appellant Fabian,
partake of the nature of an extrajudicial confession, those statements and
signature may in any case be disregarded and excluded; those statements and
signature are properly regarded as identification marks merely. Exhibit “B” is simply the paper mounting
of the packets of “shabu” marked as
Exhibits “B-1” and “B-2.” What is important is that
Exhibits “B-1” and “B-2” were in fact identified in the
testimony of Patrolman Geronimo as having been received (in the case of Exhibit
“B-1”) from appellant Fabian and taken (in the case of Exhibit
“B-2”) from Fabian’s right front ‘pants’ pocket on 11 March 1987.[19]
WHEREFORE, for all the foregoing, the Decision of the
Regional Trial Court of Makati, Branch 133,
Metropolitan Manila, in Criminal Case No. 29748 dated 14 March 1988 is hereby AFFIRMED. No pronouncement as to cost.
SO ORDERED.
Narvasa, C.J., (Chairman), Cruz, Griño-Aquino, and Medialdea, JJ., concur.
[1]
Appellant’s Brief p. 1-2.
[2]
Exhibit “B-1,” Folder of Exhibits.
[3]
TSN, 25 September 1987, p.
14.
[4]
Exhibit “B-2,” Folder of Exhibits.
[5]
Exhibit “E”, Folder of
Exhibits.
[6]
Exhibit “F”, Folder of
Exhibits.
[7]
TSN, 23 October 1987, p.
7.
[8]
TSN, 7 December 1987, pp.
7-19.
[9]
See People v. Marasigan, 51 Phil. 701 (1928).
[10]
People v. Macabenta, 170 SCRA 298 (1989). See also People v. Doctolero,
193 SCRA 632 (1991); People v. Castiller, 188
SCRA 377 (1990).
[11]
People v. Doctolero, supra.
[12]
Appellee’s Brief, p. 7.
[13]
191 SCRA 160 (1990).
[14]
People v. de la Cruz, supra; People v. del Pilar, 188 SCRA 37 (1990).
[15]
Regional Trial Court Decision, p. 4; Rollo, p.
76.
[16]
People vs. Sanchez, 173 SCRA 305 (1989); People vs. Paco, 170 SCRA 681 (1989).
See also People vs. Policarpio 158 SCRA
85 (1988).
[17]
Regional Trial Court Decision, p. 6; Rollo, p. 78.
Patrolman Leaño testified that he had made the
“Request for Laboratory Examinations” (Exhibit “A,” Folder
of Exhibits) on 12 March 1987. The “Request” was, however, dated 11 March 1987.
[18]
Exhibit “B,” Folder of Exhibits.
[19]
TSN, 25 September 1987, pp.
5-6, 13, 15 and 16.