PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. PEPITO PEÑERO Y TAGAWA, ACCUSED-APPELLANT.

It appears that the accused-appellant, who was a pedicab driver,
was also offering a different kind of trip. The lower court, after trial, found him guilty of selling marijuana in
violation of the Dangerous Drugs Act. He now says it was he who was taken for a ride.

The evidence for the prosecution showed that he was caught in
flagrante in a buy-bust operation conducted in the morning of May 12,
1989, at Sta. Rosario Street in Mandaluyong, Metro Manila.

Cpl. Ernesto David of the Mandaluyong police had earlier that
morning received a tip that there was a man selling marijuana on that
street. The man’s description was
given. On the basis of this
information, Cpl. David ordered Pat. Ronald de Castro and Cpl. Reynaldo Cruz to
conduct the operation. They were given
a ten-peso bill for the sham purchase, with the former to act as the buyer.

Arriving at the said street at about ten o’clock that morning, De
Castro waited on one side of the road for their quarry while Cruz posted
himself on the other side inside a parked car with tinted windows. Soon enough they spotted Pepito Peñero, who
fitted the description given them. De
Castro approached Peñero and asked, “Pare, meron ba tayo diyan, pahinging
isa lang.” Peñero readily answered, “Meron, sir,” and drew out
of his pants pocket a packet wrapped in aluminum foil which he gave De
Castro. De Castro then handed him the
ten-peso bill.

Cruz, who was watching the transaction, saw De Castro give the
pre-arranged signal. He forthwith
approached the two and identified himself to Peñero as a police officer. Peñero was placed under arrest. De Castro and Cruz then body-searched him and
confiscated four more aluminum-wrapped packages that they also found in the
front right pocket of his short pants.

Peñero was taken to the police headquarters, where a sworn
statement was taken from him after investigation by David. The five aluminum-wrapped packets were
marked and sent to the National Bureau of Investigation for examination and
were later found to contain marijuana. The cxorresponding complaint was thereafter filed with the fiscal’s
office, resulting in the prosecution of Peñero for violation of Section 4,
Article II of R.A. 6425.

The foregoing account was testified to by the three police
officers^[1]
and Raquel Angeles.^[2]
Among the exhibits submitted by the prosecution were the confiscated marijuana,^[3]
the laboratory report thereon,^[4] the
ten-peso bill,^[5]
and the sworn statement of Peñero.^[6]

In his defense, Peñero claimed he was set up. He denied the charge against him, claiming
that the marijuana and the ten-peso bill were both “planted.” He had
never seen the marijuana before his arrest, when it was shown to him for the
first time at the police headquarters. The money, he said, was given to him by a boy who was paying his fare
and it was while he was counting the change that the two policemen arrested
him. Peñero also assailed his
extrajudicial, confession. He said it
had been taken from him without the assistance of counsel and neither had he
been informed of his constitutional rights.

Judge Martin S. Villarama, Jr.
of the Regional Trial Court of Pasig found for the prosecution. Disbelieving the defense, he held that on
the basis of the testimonial and documentary
evidence of the People, including the extrajudicial confession, the guilt of
the accused had been established beyond reasonable doubt.

In the decision dated November 21, 1989, Peñero was sentenced to
“suffer the penalty of reclusion perpetua with all its
accessory penalties, to pay a fine of P20,000.00 and to pay the costs.”

The trial court is faulted in this appeal for giving credence to
the prosecution witnesses and for admitting the marijuana and the ten-peso bill
as exhibits despite their inadequate identification. It is also contended that the extrajudicial confession should
have been rejected outright because of its obvious flaws.

Peñero stresses that the police officers who testified against
him had merely framed him. Their story
of the sale and his arrest was concocted and implausible. He questions the identification allegedly
made by the informer and insists that the policemen merely singled him out and
arbitrarily arrested him. He
underscores their inconsistency about the source of the ten-peso bill and
suggests that the passenger he says had paid him the money was the person they
were really after. There was no proof
either that the ten-peso bill was the money used for the alleged sale as there
was no marking made thereon by the policemen. The defense also argues that the marijuana foils supposedly taken from
Peñero were not sufficiently identified, as shown by the uncertain testimony of
De Castro.

Peñero’s most important challenge is against the extrajudicial
confession, which he avers was clearly violative of the Bill of Rights.

This last challenge is formidable and must be sustained. The prosecution has not shown that the
accused was duly informed of his
constitutional rights when he was placed under custodial investigation and
later made to sign the said confession. The statement itself shows that he was merely warned that it might be
used against him. He was also not
apprised of his right to be silent and to the assistance of counsel which could
be furnished to him for free if he could not afford to retain the services of a paid lawyer. It is not denied that the statement was
taken from him without such assistance. There is also no refutation of his testimony that he was merely made to
sign the statement without giving him a chance to study it or to consult a lawyer about it.

These circumstances rendered the sworn statement completely
inadmissible. It should not have been
considered at all by the trial judge. It is amazing that he did so, in light of the long line of decisions
that should have guided him, beginning with the landmark case of Morales vs.
Enrile.^[7]
Moreover, there was the express mandate of Article III, Section 12, subsections
(1) and (3) of the Constitution, which are clear enough:

Sec. 12. (1) Any person
under investigation for the commission of an offense shall have the right to be
informed of his right to remain silent and to have competent and independent
counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided
with one. These rights cannot be waived
except in writing and in the presence of counsel.

x x x

(3) Any confession or admission obtained in violation of this or
Section 17 hereof shall be inadmissible in evidence against him.

x x x

All judges should be keenly aware of these provisions and ever
alert against their violation. The
trial judge in the case at bar actually abetted such violation instead of
striking it down with the ire it should have provoked for
affronting the Constitution. It should be observed, in fairness,
that he did say the accused-appellant would have been convicted just the same
even if the extrajudicial confession were not taken into account. The
point, though, is that he did not disregard it at the very outset, as he should
have, and instead considered it
with the rest of the evidence in
convicting Peñero.

The other points of the defense are, however, not well taken. We agree with the trial judge that even with
the rejection of the extrajudicial confession, the other evidence of the
prosecution would still be sufficient to warrant the conviction.

We have said often enough that the findings of fact of the trial
court deserve credence on appeal save where they come under the established
exceptions. The reason is the superior
opportunity of the trial judge to observe the witnesses as they testify and
thereby assess their credibility by their demeanor on the stand. The tell-tale signs of prevarication are
plain enough for the trial judge to see but are not available to the appellate
judge. The higher court can go only by
the silent record.

Even if it be conceded that David did not testify to having given
the ten-peso bill to De Castro and Cruz, that omission is not material, much
less fatal. The other two policemen did
say under oath, and categorically enough, that they got it from David.^[8]
The fact that it was not marked may have lessened its probative value but did
not render it inadmissible as part of their testimony.

The same observations may be made of the marijuana foils, which
in fact had been previously marked before they were sent to the NBI. David definitely pointed to them as the
articles turned over to him by De Castro and Cruz and in turn sent by him to
the NBI.^[9]
Notably, the marijuana was wrapped in aluminum foil with the brand name
“Tortillo Chips” printed on it,^[10] and
this served as further identification. More importantly, Raquel Angeles, the forensic chemist of the NBI,
positively identified the marijuana foils as the articles she received from
David which she subsequently examined.

Peñero’s protest that he was arrested and searched without
warrant is a futile afterthought. He
was validly arrested under Rule 113, Section 5(a), of the Rules of Court while
actually committing a crime. And he was
validly searched incidental to that arrest in accordance with Rule 126, Section
12.

The defense, finally, makes the usual argument that Peñero could
not have committed the crime so openly, in a busy street with all the people
milling around. If he really intended
to sell the prohibited article, he would have been more cautious and done it
more covertly. True, he should have
been more careful. But he was not. He probably felt that he did not have to be,
in pure disdain of the law-enforcement authorities. Peñero’s conduct only proves the growing lack of respect of
drug-pushers for the campaign against drug addiction and should lessen rather
than increase the doubt about his guilt. At any rate, we have already held that –

Drug-pushing when done on a small level as in this case belongs to that class of crimes that may be
committed at anytime and at any place. After the offer to buy is accepted and the exchange is made, the illegal
transaction is completed in a few minutes. The fact that the parties are in a public place and in the presence of other people may
not always discourage them from pursuing their illegal trade as these factors
may even serve to camouflage the same. Hence, the Court has sustained the conviction of drug pushers caught
selling illegal drugs in a billiard hall (People v. Rubio, G.R. No. 66875, June
19, 1986, 142 SCRA 329; People v. Sarmiento, G.R. No. 72141, January 12, 1987, 147 SCRA 252), in front of a store (People v. Khan, G.R.
No. 71863, May 23, 1988, 161
SCRA 406) along a street at 1:45 p.m.
(People v. Toledo, G.R. No. 67609,
November 22, 1985, 140 SCRA 259), and in front of a house (People v.
Policarpio, G.R. No. 69844, February 23, 1988).

We are convinced, as was the trial judge, that the accused-appellant
committed the crime imputed to
him. The testimonial and
documentary evidence of the prosecution
has established his guilt beyond
reasonable doubt as against his feeble defense that he was merely the victim of persecution from
the police. The police had no motive
for persecuting him. On the other hand,
it is clear that he was actuated
by greed when he plied his clandestine trade that morning in callous disregard
of the misery he was sowing.

The decision sentenced the accused-appellant to reclusion perpetua
and all its accessory penalties, but that was a mistake. The penalty prescribed
by Section 4, Article II of the Dangerous Drugs Act as amended is life imprisonment to death and a fine ranging from P20,000.00 to P50,000.00. The penalty of reclusion perpetua,
which carries accessory penalties under the Revised Penal Code, is completely
different from life imprisonment.^[11]
Consequently, we shall have to correct the penalty of reclusion perpetua to life imprisonment, to which shall be added
the fine of P20,000.00 and the costs of the suit.

The accused-appellant was only a small-time operator, but he
still contributed his share to the proliferation of illegal narcotics and the
spread of drug addiction among our people. It is dismaying that, according to the latest reports, the Philippines
has become the second biggest producer of marijuana in the whole of Asia. This dubious distinction should all the more justify the
imprisonment for life of persons like the accused-appellant whose depravity
continues to weaken our society. They
all deserve the full justice and rigor of the law for their execrable offense
against the life and future of this nation.

WHEREFORE, the appealed judgment is AFFIRMED as above
modified. It is so ordered.

Griño-Aquino, Medialdea, and
Bellosillo, JJ., concur.

^[1]
TSN, September 29, 1989; October 2, 1989.

^[2]
Ibid., September 6, 1989.

^[3]
Exhibit “B.”

^[4]
Exhibit “D.”

^[5]
Exhibit “E.”

^[6]
Exhibit “G.”

^[7]
121 SCRA 538; see also People vs.
Galit, 135 SCRA 465; People vs. Pecardal, 145 SCRA 647, People vs.
Capilin, 165 SCRA 47.

^[8]
TSN, September 29, 1989, p. 7; October 2, 1989, p. 2.

^[9]
TSN, September 29, 1989, pp. 14, 16.

^[10]
Exhibit “B;” TSN, September
6, 1989, p. 3.

^[11]
People vs. Ruedas, G.R. No.
83372, February 27, 1991.