PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. EDWIN PASCUAL Y FLORES, ACCUSED-APPELLANT.

In an information filed on 2 August 1988 in the Regional Trial
Court of Pasig, Metro Manila, accused Edwin Pascual was charged with the
violation of Section 4, Article II of Republic Act No. 6425, otherwise known as
the Dangerous Drugs Act, as amended. The said information alleges:

“That on or about the 28th day of May, 1988, in the
Municipality of Pateros, Metro Manila, Philippines, and within the jurisdic­tion
of this Honorable Court, the above-named accused, without having been
authorized by law, did, then and there willfully, unlawfully and feloniously
sell, deliver and give away to
another 3.80 grams of marijuana fruiting tops placed in a transparent plastic
bag, which are prohibited drug (sic), in violation of the above-cited law.

Contrary to law.”^[1]

The case was docketed as Spl. Criminal Case No. 717-D.

Upon arraignment on 22 August 1982,^[2]
accused pleaded not guilty. Trial was
set for 26 September 1988. On that
date, however, accused signified his intention to plead guilty to the lesser
offense defined in Section 8 of the Dangerous Drugs Act, as amended. To afford him time to secure “the
necessary approvals (sic) from the authorities concerned regarding” that
intention, the hearing was reset for 7 October 1988.^[3] Since
nothing positive developed thereafter, trial on the merits ensued. At the trial, the prosecution presented as
witnesses the arresting officers, Pat. Armando de Villa, Pat. Domingo Casiño
and Pat. Romeo de Castro of the Pateros Police Station, and P/Lt. Tita B.
Advincula of the PC Crime Laboratory Services at Camp Crame, Quezon City.^[4]
The prosecution’s theory of the case, as summarized by the trial court, is as
follows:

“x x x Prior to May
28, 1988, P/Major Ernesto I. Josef, the Station Commander of the Pateros Police
Station, received telephone calls from residents of Pateros informing him of
rampant drug selling along said area. Acting on said information, he tasked Pat. Romeo de Castro to compose
(sic) a team to conduct surveillance in the area in order to identify the
suspected pusher and to apprehend him through the so-called ‘buy-bust’
operation. Chosen as members of the
team were Pat. Armando de Villa, Pat. Domingo Casiño and Pat. Eduardo Reyes of
the Pateros Police Station.

At the height of a week-long surveil­lance, the group was able to
ascertain the identity of the suspected pusher as a certain alias ‘Tabo’. On May 28, 1988 at around 7:10 o’clock in
the evening, they conducted the ‘buy-bust’ operation at T. Sulit St., Barangay Aguho, Pateros, Metro Manila where the
suspected pusher allegedly indulged in the illicit trade of marijuana. Pat. Romeo de Castro briefed each member
of the team on how to go about the operation. He assigned Pat. Armando de Villa as poseur-buyer and
the rest as back-up. He then gave Pat. de Villa three (3)
previously xeroxed ten-peso bills with Serial Nos. FK920246, EK440768
and FH627260 (Exhibits “A”, “A-1” and “A-2”,
respectively) which would be used in purchasing marijuana from the
suspect.

In (sic) just a while, Pat. de Villa spotted the suspect in a dimly
lit vacant lot talking to a person and when he came near them, the suspect
asked him: ‘Iiskor ka ba’. Since he answered yes, worth P30.00 of
marijuana, the suspect told him to wait for a while as he would come back. A few moments later, the suspect appeared
and handed to Pat. de Villa three (3) tea bags of marijuana in exchange of
(sic) the amount of P30.00 which Pat. de Villa paid to the suspect. At this point in time, Pat. de Villa
executed a pre­arranged hand signal to his teammates who immediately closed in
and assisted him in apprehending the suspect. The latter was frisked and recovered
from his possession were the three (3) ten-peso bills found at his right back
pocket. He was subsequently
brought to the Pateros Police Station where he was investigated by Pat. Domingo
Casiño. The suspect pointed to
one alias John-John Pilay of Barangay Martinez de 96 as the source of marijuana.

Through a letter-request for technical assistance signed by Pat.
Domingo Casino on May 28, 1988 (Exhibit “D”), the marijuana specimens
confiscated from the suspect were brought to the PC Crime Laboratory Services
at Camp Crame, Quezon City for chemical analysis. After conducting three (3) tests on the subject specimens,
namely: microscopic, chemical and thin
layer chromatographic tests, Forensic Chemist, P/Lt. Tita B. Advincula, declared
in her Chemistry Report No. D-492-88 (Exhibit “C”) and Certificate of
Laboratory Result (Exhibit “F”) and which she affirmed in her
testimony that the subject specimens gave positive result for marijuana, a
prohibited drug.^[5]

Upon the other hand, the defense presented the accused, who
denied committing the crime, the accused’s neighbors, Ernesto Nicdao and
Conrado Asuncion, who corroborated his testimony, and the accused’s sister,
Jocelyn Tolentino. Their testimonies
were condensed by the trial court as follows:

“Accused, in his defense, claimed that he did not commit the
crime as charged. He alleged that on
May 28, 1988 at around 5:10 o’clock in the afternoon, he arrived home from work
at T. Sulit St., Barangay Aguho, Pateros, Metro Manila and took a short
rest. At about 7:00 o’clock in the
evening, three (3) persons whom he later identified as police officers
approached him while he was just resting near their house and invited him to go
with them to the Pateros Municipal Hall because somebody allegedly bought three
(3) bags of marijuana from him. He
vehemently denied said accusation but the police officers nevertheless
handcuffed him, searched him and brought him to the Municipal Hall of Pateros
without a warrant. At the Pateros
Police Station, he was shown the tea bags of marijuana which allegedly came
from him. He disowned them but the
police officers would not believe him. He was later detained and the corresponding charge was filed against
him.

Accused’s testimony was supported by the testimonies of his
neighbors Ernesto Nicdao and Conrado Asuncion who at that time were near the
place of the arrest. They were united in saying that accused was handcuffed
and frisked by three (3) unidentified male persons but nothing except a plastic
bag of rice was found in his possession. Later accused was asked to board a tricycle going to the municipal
hall.

For her part, accused’s sister, Jocelyn Tolentino, told the Court
that after receiving the information that his brother was arrested she
immediately went to the Pateros Municipal Hall. There she saw her brother at the investigation room being frisked
by a policeman and was being forced to admit that he was selling
marijuana. Then she saw her brother
being brought to the detention cell.”^[6]

After evaluating the evidence of both parties, the trial court
promulgated a decision on 8 May 1989, the dispositive portion of which reads:

“WHEREFORE, finding the accused EDWIN PASCUAL y FLORES guilty
beyond reasonable doubt of the offense charged, he is hereby sentenced to
suffer the penalty of reclusion perpetua with all its accessory
penalties, to pay a fine of Twenty Thousand Pesos (P20,000.00) and to pay the costs.

In the service of his sentence, the accused shall be credited in
full with the period of his preventive imprisonment.^[7]

On 9 May 1989, accused filed his notice of appeal.

In his four-page Brief,^[8]
accused contends that:

“I

The trial court erred in finding that the testimony (sic) of the
three (3) policemen who allegedly conducted a ‘buy-bust’ operation against the
appellant is more credible that (sic) the testimony of the three (3) witnesses for the defense and the appellant.

II

The trial court erred in finding appellant guilty of the capital
offense charged based on the testimony (sic) of said policemen.

III

The trial court erred in finding no violation of the constitutional
rights of the appellant against arrest without warrant and against unreasonable
search.”

In support of these assertions, he
presents the following bare arguments and nothing more:

“The testimony (sic) of said policemen is not more credible
that (sic) the testimony of the appellant and his three (3) witnesses.

The evidence for the prosecution does not constitute proof beyond
reasonable doubt that the appellant committed said capital offense.

The reasons are:

Nicdao and Asuncion, the neigh­bors of the appellant, categorically
testified that they witnessed the arrest of the appellant and the search of his
body by said policemen.

Nicdao and Asuncion categorical­ly testified that they did not see
the transfer from the appellant to Pat. de Villa of three (3) tea bags of
marijuana.

Nicdao and Asuncion categorical­ly testified that they did not see
the transfer of xerox copies of three (3) ten-peso bills from Pat. de Villa to
the appellant.

The testimony of said policemen that they used xerox copies of
three (3) ten-peso bills in the
‘buy-bust’ operation is hard to believe.

Hence, the incredible testimony (sic) of said policemen cannot be considered as constituting proof beyond
reasonable doubt that the appellant committed said capital offense.

Violations of the constitutional rights of the appellant against
arrest without warrant and against unreasonable search were committed by said
policemen.

The testimony (sic) of the appellant and his witnesses proves (sic)
that the appellant was not committing said capital offense at the time that he
was arrested and his body was searched by said policemen.

Hence, the constitutional rights of the appellant against arrest
(sic) without warrant and against unreasonable search were violated by said
policemen when they arrested the appellant and searched his body without a
warrant of arrest and without a search warrant.”^[9]

These arguments do not deserve the scantest consideration as they
are nothing but mere conclusions which betray either the hopelessness of the
accused’s cause or his counsel’s lack of zeal and seriousness in defending his
client. If the latter was due to
counsel’s firm conviction of the futility of the appeal, he should have,
instead of pursuing the appeal only to file a pro-forma brief therein,
given the accused a candid and honest opinion on the merits and probable
results of the case.^[10]

Nevertheless, if only to satisfy accused’s plea for justice, this
Court is inclined to consider the assigned errors.

1. Long settled in criminal jurisprudence is the rule that when
the issue is one of credibility of witnesses, appellate courts will generally
not disturb the finding of the trial court, considering that the latter is in a
better position to decide the question, having heard the witnesses themselves
and observed their deportment and manner of testifying during the trial, unless
it has plainly overlooked certain facts of substance and value that, if
considered, might affect the result of the case.^[11] This
present case cannot qualify as an exception to the rule and the accused
miserably failed to point out any reason why it should be considered as
such. Two important considerations
enhance the correctness of the findings of the trial court. Firstly, the testimonies of the arresting
officers are positive in character while that of the accused is negative. Thus, the former testimonies necessarily
prevail over the latter. Secondly,
no improper motive had been imputed to the arresting officers. They are, therefore, presumed to have
regularly performed their official duty in the absence of any evidence to the
contrary.^[12]
That the accused sold three (3) tea bags of marijuana and received
consideration therefor in a buy-bust operation was duly proved by the testimony
of Pat. Armando de Villa, thus:

“Q   Who
was your suspect according to the result of your surveillance?

A    A certain Tabo, Edwin
Pascual alias Tabo.

Q    Please
tell the Court the result of your operation against Tabo on the night of May 28, 1988?

A     At
about 7:15 in the evening the group led by Lt. De Castro and I and I (sic) was
assigned as poseur buyer of the suspect and when I reached the vacant lot when
(sic) Tabo was there and approached me and asked if I would score and I said,
Yes and I gave him the three-ten peso bills and then he go (sic) to the alley
and when he come (sic) back he was bringing with him three tea bags of
marijuana.

Q    Were
you able to get the three bags of marijuana?

A     Yes,
sir.

Q    What
else did you and your group do after you were handing the three bags of
marijuana?

A     I
gave my signal. When I raised my
right hand that is the time, sir.

Q    Did
you raise your hand for the signal?

A     Yes,
sir.

Q    What
happened after that?

A     My
companion came near me and apprehended the suspect and brought him to the
station, sir.”^[13]

Upon cross-examination, Pat. de Villa narrated more specifically how the buy-bust operation was
conducted:

“Q   In
that point of operation when for the first time did you see the accused?

A Around 7:10, sir.

Q Where was the accused at that time when you first saw him?

A At the vacant lot, sir.

Q Could you give us
the specific location of that vacant lot?

A Corner of T. Sulit and Quiogue St., sir.

Q Were you alone when you first saw the accused at that vacant lot?

A     Yes,
sir.

Q What action did you take when you saw the accused at the vacant lot?

A I went at (sic) the vacant lot and the suspect arrived and asked me if I
would buy marijuana.

Q What were the exact words of the accused when he approached you about
your intention to buy marijuana?

A He asked me and I quote, ‘Pare, i-iscore ka ba at ilan?’ I said worth
P30.00.

Q How did the accused came (sic) to know that you are (sic) buying marijuana?

A Because during the surveillance that is what we got from the residents
in the area.

Q What were (sic) your reply when the accused offered to buy marijuana?

A We said Yes.

Q And then what happened?

A When I said Yes and he left the place and when he came back, the
suspect, marijuana (sic) was already with him.

Q And after that, were you able to buy marijuana?

A Yes, sir.”^[14]

The abovequoted testimony of Pat. de Villa was corroborated by
his companions during the buy-bust operation, Pats. Casiño and De Castro. Moreover, P/Lt. Tita Advincula, the forensic
chemist who examined the contents of the three (3) tea bags obtained from the
accused, testified that after she conducted a microscopic examination, a
chemical test and a tin layer examination thereon, she reached the conclusion
that the same were positive for marijuana.^[15]

The contention of the accused that the policemen used xerox
copies of the ten-peso bills in the buy-bust operation is completely
misleading. Actual and genuine ten-peso
bills were used; only the machine copies thereof were offered in evidence. Thus, in his direct testimony, Pat. de Villa
said:^[16]

“Q   You
said you paid three-ten peso bills. Do
you have that?

A     In
(sic) our investigator, sir.

COURT:  
Who is that?

A     Pat.
Domingo Casiño, sir.

FISCAL:  
Do you remember if those three-ten peso
bills were marked?

A     Yes,
sir.

Q    What
are the markings?

A     The
serial number (sic) of the three-ten peso bills, sir.

Q    Do
you remember?

A     I
have my note, sir. One is
FK920246, Two is EK440768 and Three is FH627267, sir.

Q    If
you are shown a photocopy of that (sic) three-ten peso bills, will you be able
to tell the Court whether those are the
three-ten peso bills you used in the buy-bust operation?

A     Yes, sir.

Q    I
am showing to you the machine copy of the three-ten peso bills. Will you go over it and tell the Court
whether that is the faithful reproduction of the three–ten peso bills you used in that buy-bust operation?

A     Yes,
sir. That is the same. (emphasis supplied)”

Furthermore, it is settled that the
presentation in evidence of the “buy-bust” money is not indispensable
for the conviction of an accused
provided that the sale of marijuana is adequately proven by the prosecution.^[17]

2. The last issue raised by accused is the alleged violation of his constitutional rights
against warrantless arrests and unreasonable searches and seizure. He claims that when he was arrested and
searched on 28 May 1988, he was not committing any offense; hence, the same is
illegal and violates his constitutional rights.

This contention is likewise unmeritorious. Accused was arrested while in the act of
selling marijuana to Pat. de Villa; he was caught in flagrante delicto. Section 5(a), Rule 113 of the Rules of Court
provides that:

“SECTION 5. Arrest without a warrant; when lawful. — A peace officer or
a private person may, without warrant, arrest a person:

(a) When, in his
presence, the person to be arrested has com­mitted, is actually committing, or
is attempting to commit an offense;”

x x x

Moreover, Section 12, Rule 126 provides:

“SECTION 12. Search
incidental to lawful arrest. — A
person lawfully arrested may be searched for dangerous weapons or anything
which may be used as proof of the commission of an offense, without a search warrant.”

Based on the foregoing provisions, it is
clear that the constitutional guarantee against warrantless arrest, as well as
unreasonable searches and seizure, was not violated.

We therefore affirm the finding of the trial court that accused
is guilty of the crime charged. However, as to the penalty of reclusion perpetua imposed by the
trial court, the same is improper as this is not the penalty provided for the
offense charged. Section 4, Article II
of Republic Act. No. 6425, as amended, provides the penalty of life
imprisonment to death and a fine ranging from P20,000.00 to P30,000.00. The penalty of reclusion perpetua, a
penalty provided for in appropriate cases under the Revised Penal Code and
which carries accessory penalties, is completely different from life
imprisonment.^[18]

PREMISES CONSIDERED, the decision appealed from is
hereby AFFIRMED subject to the modification above indicated changing the
penalty of reclusion perpetua to life imprisonment.

SO ORDERED.

Gutierrez, Jr., (Chairman), Feliciano, Bidin, and Romero, JJ., concur.

---

^[1]
Original Records, 1.

^[2]
Original Records, 5.

^[3]
Id., 14, 16.

^[4]
Id., 111-113.

^[5]
Original Records, 111-113.

^[6]
Original Records, 113-114.

^[7]
Original Records, 117.

^[8]
Rollo, 31-34.

^[9]
Rollo, 33-34.

^[10]
Rule 15.05, Canon 15, Code of Professional Responsibility.

^[11]
People vs. Mercado, 97 SCRA 232 [1980], and the numerous cases cited
therein.

^[12]
Section 3 (m) Rule 131, Rules of Court; People vs. Gamayon 121 SCRA 642
[1983]; People vs. Paco, 170 SCRA 681 [1989] People vs. Santiago,
G.R. No. 94472, 3 March 1992, citing People vs. Mariano, 191 SCRA 136
[1990] and People vs. Catan, G.R. No. 92928, 21 January 1992.

^[13]
TSN-Lozada, 11 November 1988, 2.

^[14]
TSN-Lozada, 11 November 1988, 6.

^[15]
Id., 10-11.

^[16]
TSN-Lozada, 11 November 1988, 3.

^[17]
People vs. Sanchez, 173 SCRA 305 [1989]; People vs. De la Cruz, 191 SCRA 160 [1990].

^[18]
People vs. Baguio, 196 SCRA 459 [1991].