THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ROMEO DE LA CRUZ Y MEDA, ACCUSED-APPELLANT.

Accused-appellant, ROMEO DELA CRUZ Y MEDA, was charged with the
crime of violation of section 4, Republic Act No. 6425, as amended, before the
Regional Trial Court, National Capital Region, Pasay
City, Branch CXIV, in an information which read:

“That on or about the 11th day of September, 1987 in Pasay City, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, without authority of law, did then
and there wilfully, unlawfully and feloniously sell,
give away to another and deliver two (2) foils of dried marijuana leaves, a
prohibited drug.

“CONTRARY TO LAW.”

On September 18, 1987,
upon arraignment, accused-appellant assisted by counsel de officio entered a plea of not guilty to the offense
charged.  Pre-trial was waived, so trial
ensued thereafter.

At the hearing Patrolman Pedro Serafico,
the principal witness for the prosecution, testified that he is a member
of the Special Operations Group of the Pasay
City Police; that on September 11,
1987, at about 12:30 in the afternoon, he proceeded to Leonardo and De Las Alas Streets, Pasay
City, to conduct a surveillance per instruction of Cpl. Lammatao, as the
latter received an information that in said
area there were men involved in the use of prohibited drugs; that Col. Apolonio Lammatao, Patrolman
Ricardo Reyes, Patrolman Norman Reyes and Patrolman Marcos Butay
acted as his back-up; that at the corner of De Las Alas and Leonardo Streets,
Pasay City, he saw three men being
approached by another man who handed a rolled paper to the group of men
in exchange of money; that he approached the group and posed as a buyer; that he gave a twenty-peso bill to one of
the men in the group who turned it
over to the accused-appellant;
that the accused-appellant left the
group and after a few minutes
returned and handed to him (Serafico) two foils
of suspected marijuana; that he grabbed accused-appellant after which Cpl. Lammatao, who supplied him the twenty peso bill, approached them; that they brought
accused-appellant to the headquarters where
he was investigated; that the two foils of suspected
marijuana were brought to the NBI for laboratory
examination.  In the trial he positively
identified accused Romeo de la Cruz as the person who handed to him the
two foils of marijuana leaves (Hearing of February 12, 1988; TSN, pp. 39-46).

Mrs. Neva Gamosa, Forensic Chemist of
the National Bureau of Investigation, testified that the preliminary, chemical
and chromatographic examinations of the specimen (Exhibits “C,” “C-1” and
“C-2”) proved positive of marijuana (Hearing of October 5, 1987; TSN, pp. 1-8).

Cpl. Apolinario Lammatao
and Patrolman Norman Reyes corroborated the testimony of Patrolman Serafico on the surveillance conducted by their group and
on the buy-bust operation directed against the group of alias “Itik” using the latter as the poseur-buyer.  They also confirmed the arrest of
accused-appellant during the buy-bust
operation and the submission of the suspected marijuana leaves wrapped in
cigarette foils to the NBI for laboratory examination (Hearing of
December 9 and 22, 1987; TSN, pp. 10-46).

On the other hand, the accused-appellant denied that he sold
marijuana to Serafico.  He testified that in the afternoon of September 11, 1987, he was outside
their house located at No. 25, Leonardo Street,
Pasay City, when
a policeman in plain clothes grabbed him and
forced him to point to one alias “Itik,” a known
marijuana peddler in the area.  He was
forcibly made to board a parked vehicle. 
When he pointed to the man they were looking for, the policemen brought
both of them to their headquarters at Fort Bonifacio (Hearing of May 24, 1988, TSN; pp. 75-87).

Orlando Miranda, a witness for the defense, testified that the
man from whom the police officers bought marijuana on that day of September 11, 1987 was not the appellant but one named Berto (Hearing of May 10, 1988, TSN; pp. 65-73).

On June 6, 1988,
judgment was rendered by the trial court finding the accused-appellant guilty
beyond reasonable doubt of the crime charged, the dispositive
portion of which reads:

“WHEREFORE, this Court finds the accused ROMEO DE LA CRUZ Y MEDA,
guilty beyond reasonable doubt as principal of a violation of Section 4,
Article II of Rep. Act No. 6425 as amended, and hereby sentences said accused
to life imprisonment and to pay a fine of twenty thousand (P20,000.00) pesos without subsidiary imprisonment in case of
insolvency, and to pay the costs.

The dried marijuana flowering tops in two (2) separate foils
(Exhibits “B-2” and “B-3”) and the dried flowering marijuana tops wrapped in a
piece of comics magazine paper (Exhibit “B-4”), are confiscated in favor of the
Government to be turned over under receipt to the Dangerous Drugs Board for
proper disposal.” (p. 23, Rollo)

In his appellant’s brief, accused Romeo de la Cruz y Meda assigned the following errors:

1.       THE LOWER
COURT ERRED IN GIVING CREDENCE TO THE TESTIMONY OF
PROSECUTION THAT THERE WAS A REAL ENTRAPMENT INSTEAD OF AN
INSTIGATION.

11.     THE LOWER
COURT ERRED IN STATING THAT THERE WAS A SALE
OF MARIJUANA.

111.   THE LOWER
COURT ERRED IN GIVING CREDENCE TO THE TESTIMONIES
OF THE PROSECUTION WITNESSES INSPITE OF THE TOO MANY CONTRADICTIONS,
INCONSISTENCIES AND FABRICATION WHICH AFFECT THEIR CREDIBILITY AND VALUE OF
THEIR TESTIMONIES.

IV.      THE LOWER
COURT ERRED IN ADMITTING AND GIVING CREDENCE TO THE RECEIPT OF PROPERTY SEIZED.

V.      THE LOWER
COURT ERRED IN
NOT GIVING CREDENCE AND WEIGHT TO THE TESTIMONIES OF THE ACCUSED AND HIS
WITNESSES.

The appellant faults the trial court for finding that there was
an entrapment instead of finding that there was an
instigation.  The idea to commit
the crime allegedly came not from him but from Serafico,
the poseur-buyer.

There is a wide difference between entrapment and instigation,
for while in the latter case the instigator practically induces the would-be
accused into the commission of the offense and himself becomes co-principal, in
entrapment ways and means are resorted to for the purpose of trapping and
capturing the lawbreaker in the execution of the criminal plan.  (People v. Galicia, C.A. No. 8156, Sept. 29,
1941, 40 O.G. 4476; see also People
v. Gatong-o, No. 78698, December 29, 1988).  There was no showing on the part of appellant that the police officers
induced him to sell marijuana leaves and that he would not had
sold the same without their inducement.  Serafico simply approached the group of three (3) men
standing in the corner of Leonardo and De las Alas
Streets, offered to buy marijuana from them and handed a twenty peso bill.  The appellant accepted the money, immediately
left and upon his return he handed two (2) foils of the “stuff” to Serafico.  We noted
the ease with which the police officers were able to purchase the marijuana
leaves from the accused-appellant which shows that it was customary for him to
sell the “stuff” on demand.  This finding
belies any claim by appellant that there was instigation instead of an
entrapment:

“x x x, the
general rule is that it is no defense to the perpetrator of a crime that
facilities for its commission were purposely placed in his way, or that the
criminal act was done at the ‘decoy solicitation’ of persons seeking to expose
the criminal, or that detectives feigning complicity in the act were present
and apparently assisting in its commission. 
Especially is this true in that class of cases where the offense is one of a
kind habitually committed, and the solicitation merely furnishes evidence of a
course of conduct.  Mere deception by the
detective will not shield defendant, if the offense was committed by him free
from the influence or the instigation of the detective.  (16 Corpus Juris, page 88,
section 57; cited in People vs. Lua Chu and Uy Se Tieng,
56 Phil. 52-54)” U.S. v. Phelps, 16 Phil. 440)

The appellant contends that based on the testimony of Serafico, the team who planned to conduct the buy-bust
operation proceeded to the area to entrap a certain “Itik,”
based on the report received from some residents of Tramo
Street, Pasay City, about the prevalence of drug-peddling in the locality.  Before
the apprehension of the appellant, the police officers had no real evidence that the appellant was a marijuana seller.

Lammatao, the leader of the team which
conducted the operation instructed his men to proceed to the area not solely to
capture “Itik,” the known supplier of marijuana in
the area, but to conduct a surveillance of the area and if possible to buy from “Itik’”s group (p. 5, TSN, Testimony of Lammatao,
Dec. 9, 1987).  The fact that the appellant was not known to the
authorities as a marijuana peddler before the latter conducted the buy-bust
operation is not fatal to the cause of the prosecution in view of the
positive testimony of Serafico that he bought the
marijuana leaves from accused-appellant and the latter was arrested while
delivering the marijuana leaves to Serafico.

Appellant further contends that there was no sale of marijuana
because the prosecution failed to present in evidence the money used in the
buy-bust operation.

The failure of the
prosecution to present the twenty-peso bill used in the buy-bust operation does
not negate the existence of the crime charged against the appellant.  In People v. Gatong-o,
No. 78698, December 29, 1988, it was held that even without the money to buy
the marijuana, when the police officer went through the motion as a buyer and
his offer was accepted by the appellants and the marijuana delivered to the
police officer, the crime was consummated
by the delivery of the goods. 
Likewise, in People v. Teves, G.R. No. 81332,
April 25, 1989, “(T)he fact that the accused
returned with the amount of marijuana corresponding to the offered price
suffices to constitute if not sale, then delivery or giving away to another and distribution of the prohibited
drug punishable under Section 4, Article 11 of Republic Act 6425.” It
was not clearly established where the twenty-peso bill went but it does not
weaken the cause of the
prosecution.  So long as the marijuana
actually given by the accused was presented before the lower court, the absence of marked money does not
create a hiatus in the prosecution evidence (People v. Teves,
G.R. No. 81332, April 25, 1989).

In his third assignment of errors, petitioner argues that the
uncorroborated testimony of the poseur-buyer (Serafico)
and that of the other police officers are beset with several inconsistencies
and contradictions, particularly on the money used in the alleged buy-bust
operation and the identification of the wrapper used to wrap the foils
containing marijuana.  Lammatao testified that he supplied the money used in the
“buy-bust” operation but when he was asked what the denomination/s of the money
was/were, he answered that he could not remember.  Serafico however,
testified that it was a twenty-peso bill.

It may be that Lammatao, the head of
the “buy-bust” team, was least interested in taking note of the denomination of
the money used in the entrapment.  Thus,
when he was asked on the witness stand, he testified that he could not remember
the denomination of the “buy-bust” money he gave to Serafico.  Serafico however,
did not contradict Lammatao.  Serafico positively
identified the money as a twenty-peso bill.  Serafico was in a
better position to testify that it was a twenty-peso bill because he was the
actual poseur-buyer.  When Serafico was asked on the
kind of paper used in wrapping
the marijuana leaves, he testified on direct examination that the accused-appellant
handed him two (2) foils of suspected marijuana leaves wrapped in
cigarette wrapper and further wrapped in a cigarette foil.  (TSN,
Pat. Serafico,
February
12, 1988, p. 3).  Again, Serafico was in a better position to testify that
the two (2) foils of marijuana leaves sold to him were wrapped in cigarette foils.  Reyes, on the other hand, testified that
there were three (3) foils of marijuana leaves taken from the accused, two (2)
foils wrapped in cigarette foils and one (1) foil wrapped in a piece of comics
page.  (TSN, Pat. Norman
Reyes, December
22, 1987, p. 6).  Reconciling the testimonies of Serafico and Norman Reyes, what was actually taken from the
accused-appellant were three (3) foils of marijuana leaves two (2) foils
wrapped in cigarette foils were taken from him by Serafico
at the time of the actual “buy-bust” and the third foil, wrapped in a comics
paper was not taken from the accused-appellant by Serafico
at the time the “buy-bust” actually took place but after the other members of
the team closed-in on the appellant, arrested him and frisked him for any
possible concealed weapon.  Be that as it may, the matter of what wrapper was
used on the marijuana leaves or what was the denomination/s of the “buy-bust”
money are collateral matters and do not touch upon the commission of the crime
itself which was consumated when accused-appellant
gave the marijuana leaves, a prohibited drug, to the poseur-buyer.

According to the appellant, the investigation conducted by the
police investigators while the accused was in their custody failed to comply
with the requirement mandated by the Constitution
that a person under investigation must be represented by a lawyer of his
choice.  The receipt signed by the
appellant, while he was under investigation, showing that the marijuana leaves
seized belongs to him should not have been admitted in evidence by the trial
court.

It should be noted that the appellant in this case was caught in flagrante delicto.  The marijuana presented in evidence was taken
from him during the buy-bust operation and not when the appellant was under
investigation after he was accosted.  It was evidence
obtained pursuant to a lawful arrest and therefore, admissible in court.  Even without presenting the receipt he was allegedly
made to sign while he was under investigation, Serafico, the poseur-buyer
positively identified him as the seller of the marijuana.  The two foils of marijuana bought from him
and the rolled marijuana taken from his person when brought to the NBI
laboratory was tested positive for marijuana. 
His guilt was proven beyond reasonable doubt on the basis of the
testimonies and evidence independent of any extra-judicial confession or other evidence
gathered during the investigation.

The appellant also submits that
the testimony of its witness, Orlando Miranda is convincing.  His demeanor in the witness stand has all the
marks of honesty, clarity and straightforwardness.  Even
on cross-examination, he testified that the man from whom the police officers bought the marijuana leaves was a certain Berto and not the herein appellant.

It cannot be believed as the trial court did not believe that Serafico bought marijuana leaves during the buy-bust
operations from a person named Berto and not
from the appellant.  If it were true that, as claimed by Orlando Miranda, a
witness for the prosecution, that the actual seller was Berto
and not the accused, the police officers should have arrested Berto and not the accused-appellant.  Also, the authorities should not have allowed Berto to leave after selling them the “stuff” as they were conducting a buy-bust operation.

We have held that the matter
of assigning value to declarations
at the witness stand is best and
most competently performed by the trial judge, who unlike appellate
magistrates, can weigh such testimony in the light of the declarant’s
demeanor, conduct and attitude at the trial
and thereby placed in a more competent position to discriminate between the true and the false (People v. Baluyut,
G.R. No. 82998, February 23, 1989). 
Generally, the findings of fact
by the trial court are entitled to
great weight on appeal and should not be disturbed unless for strong and cogent
reasons because the trial court is in a better position to examine real evidence, as well
as to observe the demeanor of the witnesses
while testifying (People v.
Pimentel, G.R. No. L-47915, January 7, 1987, 147 SCRA 25, People v. Ramilo, G.R. No. 69579, January 7, 1987, 147 SCRA 102, People v. Madarang, G.R. No. 70569, January 7, 1987, 147 SCRA 123),
unless the trial court has
plainly overlooked certain facts of substance and value which if considered,
might affect the result of the case (People v. Martinez, G.R. No. L-39402, September 24, 1986, 144 SCRA 303).

We have reviewed the records of this case and We
find no reason to depart from the findings of the trial court.  The prosecution witnesses have no reason to impute the crime upon the appellant if it
were not true.  The prosecution witnesses being law enforcers are presumed to have
regularly performed their duty (People v. Andiza, 164
SCRA 642).  The record does not show that the x x x officers
who were responsible for the appellant’s entrapment were motivated by any
improper motive other than to accomplish their mission (People v. Capulong, G.R. No. 65674, April 15, 1988, 160 SCRA
533).  There was even no suggestion on the part of the defense of any evil motive on
the part of the police officers in
imputing the crime against appellant.

The trial court
correctly imposed the penalty of life
imprisonment and a fine of twenty thousand pesos without subsidiary
imprisonment in case of insolvency in accordance with Section 4, Republic
Act No. 6425, as amended, otherwise known as “The
Dangerous Drugs Act of 1972.”

ACCORDINGLY, the appealed decision is AFFIRMED.

SO ORDERED.

Narvasa, (Chairman), Cruz, Gancayco, and Grino-Aquino, JJ., concur.