PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ESMENIO DE LA PEÑA Y BEDRIO, ACCUSED-APPELLANT.

Condemned to a life in prison^[1]
for peddling marijuana,^[2]
Esmenio dela Peña reiterates his plea of innocence before this Court.

Records show that Appellant was arrested on 24 March 1988 for selling marijuana in a
“buy-bust operation” conducted by the officers of the Narcotics
Command of Region VI, Iloilo
City.  On 7
April 1988, Appellant executed a counter-affidavit before a CLAO
Attorney, vehemently denying culpability (Exh. D).  After preliminary investigation, the Third
Assistant City Prosecutor recommended dismissal of the case on the ground that
appellant was instigated to commit the crime by the Narcom officers (Exh.
Y).  This recommendation, however, was
reversed by the City Prosecutor, who ordered another prosecutor to file the
necessary Information (Exh. I).  A petition for review of said reversal
was denied by the Department of Justice, which ruled that there was sufficient
evidence to establish probable cause against Appellant and that the question of
instigation or entrapment is for the Court, and not for the Investigating
Fiscal, to determine (Exh. E).

The corresponding Information having been filed, upon
arraignment, Appellant entered a plea of not guilty.

Through its witnesses, the principal one being Sgt. Allaga, a
team member, the prosecution wrapped up its evidence thus:

On 24 March 1988, at about 2:00 o’clock P.M., Lt. Eleuterio Salde
of the Narcotics Command, Region VI, Iloilo City, received a telephone call
from a concerned citizen informing him that a certain “Esmie,” later
identified as Appellant Esmenio de la Peña, was selling marijuana at Punta
Baluarte, Molo, Iloilo City. 
Immediately, he organized and led a team composed of six (6) persons to
conduct a “buy-bust operation” (tsn., 17 April 1989, pp. 4-5).

Arriving at the directed place at about 5:00 o’clock that same
day, Sgt. Francisco Allaga, the designated poseur-buyer and principal
prosecution witness, proceeded to a sari-sari store (ibid., p. 6) and inquired,
from a child therein, about one “Esmie” (ibid., p. 7).  The child pointed to the Appellant who was
seated under a waiting shade about ten (10) meters away (ibid.).  Sgt. Allaga then approached and asked
Appellant if he (the latter) could “score” (lingo for marijuana
users).  Reacting, Appellant asked
“how much do you want” to which Sgt. Allaga replied “worth
P30.00” (ibid., p. 8).  Asked to
wait (ibid.), Sgt. Allaga then gave the amount to Appellant, who left and
returned after five (5) minutes with a parcel wrapped in a “Camel”
cigarette pack (ibid., pp. 17-18). 
Appellant handed the parcel to Sgt, Allaga, who opened it, and upon
seeing that it contained marijuana, arrested Appellant (ibid., pp. 10-11).

At the Narcom headquarters, Lt. Salde placed identifying marks on
the package which he kept in a padlocked steel cabinet for safekeeping (ibid.,
p. 14).  Lt. Salde also issued a receipt for
the property seized (Exh. C) consisting of fifteen (15) sticks of marijuana
wrapped in a “Camel” cigarette pack (Exh. C-1), which was witnessed
by Sgt. Allaga (Exh. C-2), and signed by Appellant (Exh. C-3).  Tests conducted at the PC crime laboratory yielded
positive results for marijuana (Exh. B).

On 29 May 1989,
after the prosecution had rested its case, Appellant, with leave of Court,
filed a “Demurrer to Evidence” on the ground of insufficiency of
evidence to produce conviction (Orig. Record, p. 53).  Ruling that the arguments advanced did not
appear indubitable, the Trial Court denied dismissal and ordered the reception
of evidence for the accused (ibid., p. 68).

Denying any and all culpability, Appellant’s narration is that on
the date and time in question, as he was washing clothes at his aunt’s house
(tsn., 21 August 1989, p.
2), a man, whom he later came to know as
Sgt. Francisco Allaga, arrived and inquired from him where marijuana
could be bought (ibid., p. 3).  Appellant
replied that he did not know.  When Sgt.
Allaga insisted, saying that he needed it as medication for a patient (ibid.),
Appellant again disowned any knowledge. 
At that moment, one Aris Magarse and a certain Angeles Octavio passed by
and Appellant informed them that the man needed marijuana but that he did not
know where the item could be bought (ibid., p. 4).  Aris voluntered to look for marijuana
(ibid.).  She was given money by Sgt.
Allaga (ibid.).  Ten minutes later, Aris
returned and handed the marijuana to Appellant which he, in turn, gave to Sgt.
Allaga (ibid., p. 5).  No sooner had the
Sgt. taken hold of it when the latter identified himself as a Narcom agent and apprehended him
(ibid.).

Angeles Octavio, a neighbor and close friend of Appellant,
corroborated the latter’s testimony.

After assessing the evidence before it, the Trial Court rejected
Appellant’s version for being replete with inconsistencies and improbabilities,
gave more credence to the testimony of the prosecution’s main witness, Sgt.
Allaga, and adjudged Appellant “to suffer the penalty of Reclusion
Perpetua; to pay a fine of P20,000.00 without
subsidiary imprisonment in case of insolvency, and to pay the costs.”

Unable to accept the verdict, Appellant contends that the Trial
Court erred (1) in giving credence to the prosecution evidence rather than to
his corroborated testimony; (2) in not finding that the circumstances leading
to his apprehension constitute instigation rather than a valid entrapment; and,
overall, in not acquitting him in the face of the weak prosecution evidence.

After a review of the oral and documentary evidence, we rule as follows:

The Court a quo
can not be faulted for giving credence to the testimony of Sgt. Allaga.  Although uncorroborated, it is positive and
credible and is sufficient to support conviction.  He has convincingly established the details
of the crime.  He was present when
information was received at Narcom headquarters about Appellant’s illegal activities.  He was the principal actor, the designated
poseur-buyer, in the “buy-bust” operation.  It was he who arrested Appellant after
determining that the parcel delivered to him contained marijuana.  He
witnessed the issuance of a receipt for the seized marijuana, which
Appellant had signed.  He was also with
Lt. Salde when the marijuana was delivered to the PC crime laboratory for
examination.  More, absent is any showing
that Sgt. Allaga was motivated
by any improper motive other than to perform his mandated duty.  He is also presumed to have regularly
performed his official duty in the absence of any opposite evidence.

Contrary to Appellant’s contention, the marijuana identified by
Sgt. Allaga during trial was the same item seized from Appellant.  Said witness was present when Lt. Salde made
identifying marks on the parcel in question and when was handed to the police
custodian for safekeeping.  Proper
safeguards were taken to protect the identity of the exhibit.  After appropriate labelling, it was kept in a
padlocked steel cabinet until it was taken to the laboratory for examination
four (4) days later.

Appellant’s story pointing to another individual, one Aris
Magarse, as the
supplier of the prohibited drug, is far from credible notwithstanding its
corroboration by defense witness Angeles Octavio.  For, as found by the Trial Court, Appellant had
involved himself in inconsistencies.  In
his Counter-Affidavit, the authenticity of which he had acknowledged, he stated
that when he was approached by a man, who turned out later to be a Narcom
poseur buyer, he was watching his friends playing mahjong (Exh. D).  His testimony in Court, however, was that he
was washing clothes in the house of his aunt when so approached.  Contradicting both statements is the testimony
of defense witness, Angeles Octavio, that he was with Aris Magarse when they
passed by Appellant in a “footpath” conversing with Sgt. Allaga.  Besides, if Aris were, indeed, the marijuana
supplier she would surely have been arrested also.

Further, in his Counter-Affidavit, Appellant stated that “I
left him and some few minutes later I returned with fifteen (15) sticks of
marijuana cigarettes for him.” In open Court, however, he was attributing sole fault to Aris Magarse in an effort to shift
culpability from him.

These inconsistencies cast a heavy pall of doubt on Appellant’s
version of the incident.  Of
significance, too, is the fact that instant rapport was established between
Appellant and Sgt. Allaga when the latter asked for a “score,” a term
apparently used by addicts and pushers. 
If Appellant, in fact, had not been engaged in such nefarious activity,
the term would have been alien to him, but it was not.

The Trial Court aptly characterized the circumstances surrounding
Appellant’s apprehension as “entrapment” and not
“instigation.” Firstly, Appellant’s story that he had consistently
denied to Sgt. Allaga having marijuana but that because of the latter’s
insistence, he was induced to look for and produce marijuana, can not be given
credence, his testimony having been found to be unworthy of belief, as already
expounded.  The prosecution version,
being more credible, the operation was, in fact, an entrapment not an
instigation, the underlying difference being in the origin of the criminal intent.  In entrapment, mens rea
originates from the mind of the criminal. 
The idea and resolve to commit the crime comes from him.  In instigation, the law officers conceive the
commission of the crime and suggest it to the accused, who adopts the idea and
carries it into execution (Araneta v. Court of Appeals, G.R. No. L-46638, 9
July 1986, 142 SCRA 534).  Entrapment is
sanctioned by the Revised Penal Code. 
Instigation is tabooed.

In this case, Sgt. Allaga’s inquiry addressed to Appellant was
far from a suggestion.  It was a query to
which Appellant immediately responded by asking how much was needed, requesting
the Sgt. to wait, and returning after a few minutes with the “goods” in
hand.  Appellant needed no prodding, no
inducement, and much less, instigation. 
His reaction was natural to one who was already engaged in the illicit
trade of marijuana and all that Narcom did was to catch him in the act.

Under the circumstances, Appellant does not deserve acquittal.

It needs stressing, however, that Appellant’s signature on the
receipt of the property seized (Exh. C-1), a procedural step after arrest, is
not a factor in his conviction.  That signature is inadmissible in evidence against him.  It was obtained in violation of
Appellant’s right as a person under custodial investigation for the commission of an
offense, there being nothing in the records to show that he was then assisted
by counsel.  (People v. Bagano, G.R. No.
77777, 5 February 1990, 181 SCRA 747). 
Appellant’s guilt has been adequately established by other evidence of
record.

WHEREFORE, the judgment appealed from is AFFIRMED, except
that the penalty should be life imprisonment (Pres. Decree No. 1675, Section 4)
and not “reclusion perpetua” as imposed by the Trial Court.  Costs against accused-appellant, Esmenio de
la Peña.

SO ORDERED.

Paras, Padilla, Sarmiento, and
Regalado, JJ., concur.

^[1]
By the Regional Trial Court, Branch XXIII, Iloilo City, Judge Tito G. Gustilo,
presiding.

^[2]
Art. II, Sec. 4, Rep. Act No.
6425, as amended by Pres. Decree No. 1675, Sec. 1.