PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. MARIO TUBORO Y ACUNIN, DEFENDANT-APPELLANT.

Mario Tuboro y Acunin appeals from the judgment of the Regional Trial
Court, Branch CLXIV (164), Pasig, Metro Manila in Criminal Case No. 1161-D for
violation of Section 4, Article II of Republic Act 6425, as amended, otherwise
known as the “Dangerous Drugs Act.”

The Information against the accused-appellant alleged:

“That on or about the 7th day of March, 1990 in the
Municipality of Mandaluyong, Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, without having
been duly authorized by law, did, then and there wilfully, unlawfully and
feloniously sell, deliver and give away to another 100 grams of dried marijuana
flowering tops placed in a sealed plastic bag with markings wrapped in a white
paper which is a prohibited drug, in violation of the above?cited
law.” (p. 5, Rollo.)

Upon arraignment, the accused, assisted by counsel de
parte, entered a plea of “not guilty.”

The prosecution evidence established the following facts:

At around 5:00 o’clock in the afternoon of March 7, 1990, acting on
a telephone call that a certain “Nonoy” was selling marijuana between
Kapalaran and Agudo Streets in Mandaluyong, Metro Manila, P/Cpl. Genrie A.
Lucero of the SWAT, Metropolitan Police Field Force, Fort Bonifacio, Makati,
Metro Manila, after consultation with his superior officer Capt. Valencia,
formed a team to conduct a buy-bust
operation. Patrolman Antonio Dimain was
designated to act as poseur-buyer while four (4) other policemen would serve as
back-up. Pat. Dimain was given by Pat.
Lucero marked P100 and P50 bills, which were earlier xeroxed. Pat. Dimain was further instructed to handcuff the suspect immediately upon
giving him the marked bills.

The team proceeded to Mandaluyong. Pat. Dimain posted himself on Agudo Street, while his companions were
fifteen (15) meters away from him. After a while, he saw the appellant, Mario Tuboro. He approached appellant and asked him if he
could buy some marijuana. The appellant
shelled out a plastic bag of marijuana and Pat. Dimain, in turn, gave him the
marked bills. Afterwards, Pat. Dimain
introduced himself as a policeman, handcuffed the appellant who resisted, but
he was prevented from escaping because the other team members swooped down on
the scene of the arrest.

Appellant was brought to Fort Bonifacio where he was investigated
by Pat. Umali. At the same time, Pats.
Lucero and Dimain executed a Joint Affidavit.

The National Bureau of Investigation, which conducted a laboratory
examination of the contents of the plastic bag recovered from the appellant,
found its contents positive for marijuana.

The defense’s
version, on the other hand, was as follows:

The appellant is a second year high school student at Ramon
Magsaysay High school. He absented
himself from school in the evening of March 7, 1990 because he had to finish a
school project. He went to Boni Market
to buy some materials which he needed for his school project. On Barangka Street going to the market, he
was accosted by Cpl. Lucero and told to board a tricycle and Lucero brought him
to his (Lucero’s) home. From there, Lucero
brought him to Fort Bonifacio in his car. Tuboro was led to Lucero’s sleeping quarters and at around 11:00 p.m.
was brought out and taken to the police headquarters. Up to this point in time, he was not informed by Lucero that he was under arrest for a
particular offense.

At the police headquarters, Tuboro came to know that he was being
detained for allegedly selling marijuana. He was allegedly mauled by three police officers who threatened to maul
him again unless he admitted on tape that he sold marijuana. While being video taped, Tuboro was made to
point to a package wrapped in a newspaper which, he learned later, contained
marijuana. Reporters were present at
the time. The records do not show,
however, that Tuboro was informed of his Constitutional rights. Since that day, Tuboro has been under
detention.

After the trial, the court a quo in a decision
promulgated on September 11, 1990 convicted Tuboro of the crime charged and
imposed upon him “the penalty of reclusion perpetua (life
imprisonment) [sic] and to pay a fine of P20,000.00.” (p. 21, Rollo.)

However, because he was only “a teenager barely 19 years
old, a high school student with no derogatory record in his community or in
school when he committed the offense charged” which was his first offense
and the amount of the prohibited drug illegally sold by him was
“minimal,” the trial court recommended to the President, through the
Secretary of Justice: “clemency
for the herein accused after a few years of service of his sentence based on
the humanitarian principle, as once put by the Bard, that justice must be
tempered with mercy.” (p. 21,
Rollo.)

The accused has appealed, assailing the trial court’s
appreciation of the evidence against him, and assigning the following errors
against its decision:

1. The court erred in ruling that the evidence presented by the
prosecution is formidable.

2. The court erred in not upholding the constitutional presumption
of innocence in favor of the accused.

3. The court erred in finding that “about 100 grams of
marijuana were bought from the accused by the police poseur-buyer utilizing two
marked peso bills.

4. The court erred in not considering that the alleged acts of
confession by the accused were obtained after he was mauled by several
policemen.

5. The court erred in
finding that the defense of the accused that he was the victim of a
“frame-up” was “puny.”

Section 4, Article II of Republic Act No. 6425, as amended,
provides:

“Sec. 4. Sale, Administration, Delivery, Distribution and
Transportation of Prohibited Drugs. – The
penalty of life imprisonment to death and
a fine ranging from twenty thousand to
thirty thousand pesos shall be imposed
upon any person who, unless authorized
by law, shall sell, administer, deliver, give
away to another, distribute, dispatch in
transit or transport any prohibited drug,
or shall act as a broker in any of such transactions. If the victim of the offense is a minor, or should a prohibited
drug involved in any offense under this Section be the proximate cause of the
death of a victim thereof, the maximum penalty herein provided shall be
imposed.” (Underscoring ours.)

The credibility of the prosecution witnesses and the weight to be
given to their testimonies are matters that lie within the trial court’s
discretion.

The alleged inconsistencies and contradictions in the testimonies
of the police witnesses involve minor details which do not dent the case of the
prosecution “nor do they reflect on the
witnesses’ honesty” (People vs. Bernardino, 193 SCRA 448; People vs. Doctolero,
193 SCRA 632). On the contrary, they
are indications of their truthfulness and candor (People vs. Kyamko, 192 SCRA
374). The commission of the offense of
illegal sale of marijuana requires merely the consummation of the selling
transaction. (People vs. Marco Polo,
147 SCRA 551). In this case, the
transaction was consummated when the accused handed a bag of marijuana to the
poseur-buyer in exchange for the money paid to him by the latter. The alleged inconsistencies are of no
significance to us in establishing the guilt of the accused. As this Court aptly held in People vs.
Macuto, 176 SCRA 762:

“What is important is the fact that the poseur-buyer received
the marijuana from the appellant and that the contents were presented as
evidence in court. Proof of the
transaction suffices. The identity of
the tea bag of marijuana which constitutes the corpus delicti was established
before the court. This being so, the
conflicting testimonies for the prosecution x x x did not discredit the whole
of the prosecution evidence as being inconclusive (People vs. Tejada, G.R. No.
81520 [February 21, 1989]). The rule
that the testimony of a prosecution witness may be disbelieved in some facts
but may be believed in other facts is applicable to this case (People vs.
Pacada, 142 SCRA 427 [1986]).”

It is not incredible that the meeting between Dimain and
appellant on March 7, 1990, was their first. In the nature of “buy-bust” operations, the designated
poseur-buyer must be a perfect stranger to the suspected drug pusher, for
normally a suspect would not transact business with known police operatives.

All important is the fact that the accused sold marijuana to the
policeman without being induced to do so.

The trial court convicted the accused on the strength of the
prosecution’s evidence rather than on account of his weak defense.

“Well-settled is the rule that the factual findings of the
trial court, which had all the opportunity to observe the behavior and demeanor
of the witnesses and weigh all the evidence presented, are accorded great
respect and weight in the absence of a clear showing of arbitrariness and
misapprehension of the facts.” (People vs. Demecillo, 186 SCRA 161, 171.)

Anent Tuboro’s “frame-up” theory we held in People vs.
Agapito, 154 SCRA 694, 695, that:

“In cases involving persons accused of being drug pushers or
sellers, almost always the defense is that the accused was framed by the
apprehending police officers. We
realize the disastrous consequences on the enforcement of law and order, not to
mention the well-being of society, if the courts, solely on the basis of the
policemen’s alleged rotten reputation, accept in every instance this form of
defense which can be so easily fabricated. It is precisely for this reason that the legal presumption, that
official duty has been regularly performed, exists.”

Moreover, “there’s nothing in the record to suggest that the
police officers were compelled by any motive other than to accomplish their
mission to capture appellant [Tuboro] in the execution of the crime”
(People vs. Castiller, 188 SCRA 376, 382). Police officers are presumed to have performed their duties regularly in
the absence of any evidence to the contrary (Rule 131, Section 5(m), Rules of
Court); and their testimonies are entitled to full faith and credit (People vs.
Patog, 144 SCRA 429).

The alleged denial of Tuboro’s right to counsel during custodial
investigation, is not a material
issue in this case for no
extrajudicial statement was taken from him. Besides, the trial court, in determining his culpability relied on the
eyewitness’ testimonies of the apprehending officers and not on any
extrajudicial statement made by him.

The court is convinced that the guilt of the appellant of the
crime charged had been proven beyond reasonable doubt. However, the penalty of reclusion perpetua
imposed by the trial court is improper for it is not the penalty provided in Section 4, Article II of Republic
Act 6425. The penalty provided by law
is “life imprisonment to death and
a fine ranging from P20,000 to P30,000.”

WHEREFORE, the appealed decision of the Regional Trial
Court of Manila is AFFIRMED but with modification only in respect of the
penalty of imprisonment imposed on him by the trial court which is hereby
changed to life imprisonment. In all other
respects, it is AFFIRMED. Costs de
oficio.

SO ORDERED.

Cruz, (Chairman), Medialdea, and
Bellosillo, JJ., concur.