PEOPLE OF THE PHILIPPINES, PLAINTIFF/APPELLEE, VS. ALEXANDER MARTINEZ ALIAS ABELARDO MARTINEZ Y MONTESOR, ACCUSED/APPELLANT.

On November 22, 1989, accused-appellant Alexander Martinez, alias
Abelardo Martinez y Montesor, was charged with (1) violation of Section 4,
Article II of Republic Act 6425 otherwise known as the Dangerous Drugs Act
(Criminal Case No. 9618) and (2) violation of Section 1 of Presidential Decree
No. 1866 for illegal possession of firearms (Criminal Case No. 9626), before
the Regional Trial Court of Zamboanga City.

The information in Criminal case No. 9618 charges
accused-appellant and Dolores Cabatuan Martinez with violation of the Dangerous
Drugs Act (Republic Act No. 6425), as follows:

“That on or about the 6th day of November, 1989, in the City
of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, not being authorized by law, conspiring and
confederating together, mutually aiding and assisting with one another, did
then and there willfully, unlawfully and feloniously, sell and deliver to one
EDGAR PELIN y FERNANDEZ who pose (sic) as buyer, one (1) deck of Metamphetamine
Hydrochloride popularly known as “SHABU“, knowing the same to
be a prohibited drug.

“CONTRARY TO LAW.” (Rollo, p. 9)

In Criminal Case No. 9626 appellant was charged as follows:

“That on or about the 6th day of November, 1989, in the City
of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, without any justifiable cause or reason, did then and
there willfully, unlawfully and feloniously, have in his possession and under
his custody and control, one (1) .38 caliber “paltik” revolver with
Serial No. 50284 and eight (8) rounds of live .38 ammunition, without first
having obtained the necessary license and/or permit therefore, in flagrant
violation of the aforementioned law.

“CONTRARY TO LAW.” (Rollo, p.10)

Appellant with the assistance of counsel, pleaded not guilty upon
arraignment on the above charges. Thereafter, the two cases were jointly tried on the merits upon
agreement of the parties.

The facts of the case as summarized in the People’s brief are as
follows:

“The factual findings of the court a quo are not
disputed by appellant x x x. This
notwithstanding, they are hereunder briefly summarized x x x.

“On October 27, 1989, after receiving information that
appellant was engaged in the sale of shabu at his residence at the
Bureau of Air Transportation (BAT) Compound, Baliwasan Moret, Zamboanga City,
National Bureau of Investigation (NBI) Agent Bienvenido Salvo of the NBI
Regional Office in Zamboanga City directed his ‘asset’ or confidential informer
Edgar Pelin to purchase from appellant P200.00 worth of prohibited drug. Pelin succeeded in purchasing from appellant
a specimen which Agent Salvo sent the next day to the NBI chemist in Cebu who,
after a laboratory examination, determined that it was indeed shabu or metamphetamine
hydrochloride. Immediately
thereafter, Agent Salvo returned to Zamboanga City to map out a ‘buy-bust’
operation against appellant (TSN, April 19, 1990, pp. 5-6).

“On November 6, 1989, the ‘buy-bust’ operation was set up by
the NBI Regional Office with the assistance of the Zamboanga City Police. A raid party composed of four separate teams
was formed for the ‘buy-bust’ operation. One of the teams (the search team) was headed by Agent Salvo, with
Captain Isniraji Maruji of the Zamboanga City Police and a custodian, a
photographer and an administrative officer from the NBI as members. For his part, Pelin would act as
poseur-buyer in the ‘buy-bust’ operation. Agent Salvo likewise obtained a search warrant (Exhibit “C”)
for this operation (TSN, April 18, 1990, pp. 6-10; TSN, April 19, 1990, p. 12).

“The group arrived at the BAT Compound at around 2:00 o’clock
in the afternoon of said date. Agent
Salvo gave Pelin P200.00 in marked money for the purchase of the shabu. As Pelin approached appellant’s house, the
rest of the party positioned themselves about twenty to thirty meters from
where the transaction took place (TSN, April 18, 1990, p. 5; TSN, April 19,
1990, pp. 9-10).

“Pelin knocked at the appellant’s door and was allowed entry
by the latter’s guard. Inside the
house, Pelin gave the marked P200.00 to appellant who in turn gave him a ‘deck’
of shabu (Exhibit “J”) which was wrapped in aluminum foil
(Exhibits “J-1” to “J-2”). The transaction concluded, Pelin signalled to his companions by going
out of appellant’s house (TSN, April 18, 1990, pp. 6-7).

“The search team led by Agent Salvo then rushed forward and
entered appellant’s house while the rest of the raid party secured the
area. Pelin turned over the ‘deck’ of shabu
to the NBI custodian who marked the aluminum foil wrapper with the initials
“AMM”. Simultaneously, Agent
Salvo presented a copy of the search warrant to appellant and thereafter the
search team conducted a search of the premises (TSN, April 18, 1990, p. 8; TSN,
April 19, 1990, p. 10; TSN, May 8, 1990, pp. 10-­11).

“The search team recovered drug paraphernalia from various
places in appellant’s house. However,
only P100.00 of the marked money was recovered by the team. Captain Maruji and Agent Salvo also
recovered a .38 caliber “paltik” revolver (Exhibit
“F”) with serial number 50248 containing five live ammunition inside
a pillowcase in appellant’s bedroom (TSN, April 18, 1990, p. 30, 36-39; TSN,
April 19, 1990, p. 10-12).

“The search team made a three-page inventory (Exhibits
“D” to “D-8”) of the things seized at the appellant’s
house. Said inventory was signed by
appellant and a copy thereof was furnished him. Further, several photographs (Exhibits “E” to “E-­6”)
were taken relative to the search (TSN, April 19, 1990, pp. 13-17).

“Edgar Pelin executed an affidavit (Exhibits “A” to
“A-3”) wherein he recounted in detail his participation in the
‘buy-bust’ operation. Likewise, Agent
Salvo and Captain Maruji executed a joint affidavit (Exhibit “B”)
wherein they set forth the procedure they adopted and the details on how they
were able to arrest appellant and search his house. The aforementioned affidavits were introduced and admitted in
evidence and they fully confirmed the testimony of the above-named witnesses
(TSN, April 18, 1990, p. 10-11; TSN, April 19, 1990, p. 23).

“Immediately upon receipt of the ‘deck’ of shabu, the
NBI custodian submitted it to NBI chemist Cesar Cagalawan right inside
appellant’s residence for examination. Chemist Cagalawan made a preliminary investigation of the specimen known
as the Marquis Test at the NBI Regional Office in Zamboanga City and the
presence of metamphetamine was confirmed. Later, he conducted a Thin Layer Chromatography examination at
the NBI Regional Office in Cebu City which conclusively determined that the
substance sold by appellant to poseur-buyer Pelin was indeed metamphetamine
hydrochloride or shabu. He
formalized the results of his examination in Chemistry Report No. 89-DD-4411,
which was offered and admitted in evidence as Exhibits “K” to
“K-3″ (TSN, May 8, 1990, pp. 4­-15).”

(Rollo, p.72; See People’s Brief at pp. 3-8)

The defense presented accused-appellant, his wife Dolores
Martinez, Angelina Martinez and Bonifacio Leyte. Said witnesses presented a totally different version of the
circumstances surrounding the arrest of appellant and the consequent charges
against him.

Appellant’s version purports to show that at about 1:00 P.M. of
November 6, 1989 he was at home watching television, and slept at about 1:20
pm. He claims to have been awakened by
two persons kicking him whom he identified as prosecution witnesses Salvo and
Pelin. All told, appellant denies
having sold shabu to Pelin nor owning the .38 caliber revolver allegedly
found in his room.

At the NBI Office, appellant was allegedly forced to sign an
inventory of the seized articles under the threat of summary execution. The testimonies of the other defense
witnesses, on the other hand, generally corroborated appellant’s testimony.

After trial, the court a quo rendered its decision, the
dispositive portion of which reads:

“WHEREFORE, premises considered, this court finds the accused
Alexander Martinez “alias” Abelardo Martinez y Montesor guilty beyond
reasonable doubt for violation of Section 4, Article II of Republic Act 6425,
otherwise known as the Dangerous Drugs Act of 1972 and for Illegal Possession
of Firearm defined and penalized under P.D. No. 1866 and pursuant thereto
hereby sentences him as follows:

“1. In Criminal
Case No. 9618, accused is sentenced to suffer life imprisonment and to pay a
fine in the amount of Twenty Thousand (P20,000.00) Pesos, and to pay the costs.

x x x

“2.
In Criminal Case No. 9626, accused is sentenced to suffer imprisonment from
Seventeen (17) to Twenty (20) Years and to pay the costs. The accused who is a detention prisoner is
credited to the full extent of his preventive imprisonment.

x x x

“3. In Criminal Case
No. 9618, this Court, on ground of insufficiency of evidence, hereby ACQUITS
the accused Dolores Cabatuan Martinez, with costs de oficio. The accused who is a detention prisoner is
ordered released immediately unless there exists an order in other case/s
directing her continued detention.

“SO ORDERED.” (Rollo, pp. 26-27)

In this appeal, accused-appellant raises the following assignment
of errors:

“1.1 The Trial Court erred in not acquitting the
Accused-Appellant for failure of the prosecution to prove beyond reasonable
doubt his guilt in Criminal Case No. 9618 (for violation of Sec. 4, Art. 11 of
Rep. Act No. 6425, “Dangerous Drugs Act of 1972), considering that:

“a) The ‘shabu‘ (Exhibit ‘J’ and
submarkings) was not identified by the prosecution’s sole eyewitness to the
alleged “buy-bust” operation, in the person of Edgar Pelin who acted
as ‘poseur-buyer’; in other words, there is no proof beyond reasonable doubt
that the alleged ‘shabu‘ (prosecution’s Exhibit ‘J’ and submarkings) was
ever purchased by Edgar Pelin (the alleged ‘poseur-buyer’) from the Accused-Appellant,
or that the alleged ‘shabu‘ (Exhibit ‘J’ and submarkings) is the very
same dangerous drug allegedly purchased by the poseur-buyer, precisely because
Exhibit ‘J’ and submarkings were not identified by the poseur-buyer (Edgar
Pelin);

“(b) The marked
money which was allegedly used in the buy-bust operation, was EXCLUDED as
evidence by the Trial Court (‘Order’ dated May 15, 1990); moreover, said marked
money was not identified by the poseur-buyer himself (Edgar Pelin); hence,
there could legally be NO buy-bust operation, because the element of ‘marked
money’ (sic) was not proven beyond reasonable doubt; and

“(c)   Any and all items particularly the ‘shabu‘
(Exhibit ‘J’ and submarkings), the firearm (Exhibit ‘F’) and five live ammos
(Exhibit ‘F-1’ to ‘F­-5’, which were seized by virtue of the Search Warrant
(Exhibit ‘C’) issued against a certain ALEXANDER MARTINEZ alias ALEX”, are
inadmissible against Accused-Appellant, who is ABELARDO MARTINEZ y MONTESOR
with the nickname ‘LARD’; in short, they are two different persons, as there is
no proof beyond reasonable doubt that ‘ALEXANDER MARTINEZ’ and appellant
ABELARDO MARTINEZ are one and the same person.

“1.2 The Trial Court erred in not acquitting the
Accused-Appellant for failure of the prosecution to prove beyond reasonable
doubt his guilt in Criminal Case No. 9626 (for illegal possession of firearm
defined and penalized under Sec. 1 of PD No. 1866), considering that:

“(a) The six shooter .38 caliber revolver
in question, which was allegedly found in the room of Accused-Appellant by
prosecution witness Capt. Maruji was not presented in evidence; also, the
‘eight (8) rounds of live .38 caliber ammunition’ (five of which were found
inside the chamber and three of which were outside the chamber of the five-shooter
.38 revolver (Prosecution’s Exhibit ‘F’) are DIFFERENT from those allegedly
found by prosecution witness Capt. Maruji, because those found by Capt. Maruji
were allegedly found in reference to a six-shooter .38 revolver (sic) (six
inside the chamber and two outside); moreover, the gray lady purse
(Prosecution’s Exhibit ‘H-6’ in which three (3) live ammos were allegedly
found, was excluded by the Trial Court (‘Order’ dated May 15, 1990);

“(b) The evidence presented by the prosecution is
DIFFERENT from the revolver and ammunition allegedly found by
prosecution-witness Capt. Maruji; and

“(c) The alleged revolver and ammos in question
were not found in the actual possession of the Accused-Appellant, as they were
allegedly found inside the Accused-Appellant’s room wherein they (revolver and
ammos) could have easily been planted.”

(Rollo, pp. 36-38)

Indispensable in every prosecution for the illegal sale of
prohibited drugs is the submission of proof that such a sale took place between
the poseur-buyer and the seller thereof, and the presentation further of said
prohibited drug as evidence in court (People vs. Pacleb, 217 SCRA 92
[1993]). What is important is the fact
that the poseur-buyer received the shabu from appellant and that the
contents thereof were duly presented in court.

Records show that the seized shabu was duly presented in
court is exhibit “J” and was competently identified by prosecution
witness Cesar Cagalawan, an NBI chemist. Pelin’s testimony was likewise consistent and compatible on its material
points. He categorically pinpointed
accused-appellant as the one who handed him the tinfoil containing the shabu. When asked to testify on what had transpired
on November 6, 1989, Pelin gave the following straightforward statements:

“FISCAL

“Q    Now,
you said awhile ago that you went to the house of the accused in order to buy a
deck of Shabu. Tell the Court
how were you able to enter the house of the accused?

“A    I
was able to get inside the house of the accused because I know the accused
already that they are selling Shabu (sic).

“Q    In
other words, before that date November 6, 1989, you have gone to the house of
the accused already?

“A    Yes
sir.

“Q    For
how many times?

“A    I
cannot remember, but I remembered October 27, 1989.

x x x

“Q    Now,
will you please tell this Honorable Court how the transaction of buy and sell
(sic) took place.

x x x

“A    I
went to the house of the accused and their guard opened the door and I got
inside and once inside, I gave the money to them and they gave me the Shabu.

“Q    You
said that you gave the money to them, who are you referring to?

“A    Abelardo
Martinez.” (TSN, April 18, 1990, pp. 5-7)

Pelin’s statements were furthermore corroborated by the
testimonies of the other witnesses for the prosecution who were law enforcers,
and, the absence of proof to the contrary are presumed to have regularly
performed their duties (People vs. Yap, 185 SCRA 222 [1990]).

As correctly stated by the Solicitor-General, Pelin testified:

“x x x that he turned over the shabu to the NBI
custodian as soon as the ‘buy-bust’ operation ended (TSN, April 18, 1990, p.
8). For his part, NBI Chemist Cesar
Cagalawan testified that the NBI custodian submitted said drug to him inside
appellant’s residence for examination (TSN, May 8, 1990, pp. 4-7). These assertions were in turn fully
corroborated by Agent Bienvenido Salvo in his direct examination testimony
(TSN, April 19, 1990, pp. 12-13).” (Rollo, p. 76; See People’s Brief, pp.
12-13)

Needless to say, even if the poseur-buyer was not made to
identify the seized shabu, the same would not have worked against the
People’s case. Proof of the transaction
suffices.

The allegation of the appellant that the marked money was not
properly identified by the poseur-buyer does not deserve even a passing
consideration. As long as the
prohibited or regulated drug given or delivered by the appellant was presented
before the court and the appellant was clearly identified as the offender,
conviction is proper. In fact, the
absence of the marked money or its non-presentation in court would not create a
hiatus in the prosecution’s evidence (People vs. Hoble, 211 SCRA 675 [1992];
People vs. Tandoy, 192 SCRA 28 [1990]).

Appellant reproves the prosecution for the variance between the
testimony of Captain Maruji as to the firearm seized and that actually
presented during the trial. It should
be remembered, however, that what the law punishes is the mere possession of an
unlicensed firearm regardless of make, model, or kind. That an unlicensed firearm was seized from
the house of appellant is undisputed, and this is more than adequate for
appellant’s conviction.

Finally, accused-appellant argues that he is not the person named
in the search warrant issued in connection with the buy-bust operation, his
name being Abelardo Martinez and not Alexander Martinez. That being the case, all things seized by
virtue of the said warrant are inadmissible in evidence.

The argument is devoid of merit.

The discrepancy regarding the name of accused-appellant and that
stated in the search warrant cannot militate against his positive
identification by the poseur-buyer. It
has been consistently held that “greater weight is given to the positive
identification of the accused by the prosecution witnesses than accused’s
denial concerning the commission of the crime (People vs. Serdan, 213 SCRA 329
[1992]).

And as correctly pointed out by the trial court:

“The claim of the accused that his true and correct name is
not Alexander Martinez but Abelardo Martinez does not deviate from the fact of
his identity being established as a peddler of shabu. Even granting arguendo that his (accused)
claim is correct that he is not Alexander but Abelardo, that alone does not
warrant dismissal or absolving the accused of criminal liability. Sec. 7, Rule 110 of the 1985 (should read
1988) Rules on Criminal procedure, as amended, provides:

‘A complaint or
information must state the name and surname of the accused or any appellation
or nickname by which he has been or is known, or if his name cannot be
discovered he must be described under a fictitious name with a statement that
his true name is unknown.

‘If in the course of the proceeding the true name of the accused is
disclosed by him, or appears in some other manner to the court, the true name
of the accused shall be inserted in the complaint or information and
record.” (Rollo, p. 23)

Granting arguendo that the search warrant issued against
accused-appellant was invalid, because his true name is Abelardo Martinez and
not Alexander Martinez as stated in the search warrant, the same cannot render
the articles seized inadmissible as evidence in court. As a matter of fact the information filed
identify him as “Alexander Martinez alias Abelardo Martinez y
Montesor, accused.”

The accused-appellant was arrested as a result of a “buy-bust”
operation and the ensuing search of the premises was made as an incident to a
lawful arrest (Section 12, Rule 116 Rules of Court; People vs. Musa, 217 SCRA
597 [1993], People vs. Fernandez, 209 SCRA 1 [1992], People vs. Liquen, 212
SCRA 288 [1992], People vs. Li Wai Cheung, 214 SCRA 504 [1992], People vs.
Eligino, 216 SCRA 370, [1992]). It is
therefore clear that regardless of the alleged defect of the search warrant in
erroneously designating his first name, the seized articles may still be used as
evidence against accused-appellant, having been obtained from him and as such,
fruits of a lawful search incidental to a valid arrest.

Furthermore, appellant was arraigned under the name of Alexander
Martinez and when arraigned under said name he entered his plea of “not
guilty”. Appellant should have
raised the question of his identity either at the time of arraignment or by
filing a demurrer based on the court’s lack of jurisdiction over his person, inasmuch
as he was then considered as Alexander Martinez alias Abelardo
Martinez. Having failed to do so, he is
estopped from later raising the same question (People vs. Narvaes, 59 Phil. 738
[1934]). His identity had been
sufficiently established.

Finally, as We have held in People v. Reception, (198 SCRA 670
[1991]), “the identification of a person is not established solely through
knowledge of the name of that person”. It is clear from the records that appellant was the same person who sold
the prohibited drug to Pelin on two instances. The claim therefore that his true and correct name is Abelardo Martinez
and not Alexander Martinez cannot overturn the fact of his identity being
established as the peddler of shabu,
a prohibited drug.

Premises considered, the Court believes and so holds that the prosecution has fully discharged
its duty of proving the guilt of the accused beyond reasonable doubt.

In Criminal Case No. 9618, appellant was convicted for selling
one (1) deck of “shabu” and was accordingly sentenced to suffer life
imprisonment and to pay P20,000.00 fine.

In the case of People v. Simon (GR No. 93028, July 29, 1994),
this Court gave retroactive application to the provisions of R.A. 6425 which
was further amended by R.A. 7659 as follows:

“Sec. 20. Application
of Penalties, Confiscation and Forfeiture of the Proceeds of Instruments of the
Crime. — The penalties for offenseds
under Sections 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15 and 16
of Article III of this Act shall be applied if the dangerous drugs involves is
in any of the following quantities:

x x x

“3.      200 grams or more of shabu or
methylamphetamine hydrochloride;

x x x

“Otherwise, if the quantity involved is less than the
foregoing quantities, the penalty shall range from prision correccional to
reclusion perpetua depending upon the quantity.”

Given the fact that what is involved is less than 200 grams of shabu
and there being no mitigating or aggravating circumstances, the proper
imposable penalty to be imposed upon appellant is prision correccional in its
medium period without fine. Applying
the Indeterminate Sentence Law in consonance with People v. Simon (supra),
appellant is hereby sentenced to suffer imprisonment from six (6) months of arresto mayor, as minimum, to two (2) years and four
(4) months of prision correccional as maximum. The fine of P20,000.00 is deleted.

Further, the proper penalty to be imposed upon accused-appellant
in Criminal Case No. 9626 for violation of P.D. 1866 should be 17 years 4 months and 1 day of reclusion temporal as minimum to reclusion perpetua as maximum and
not 17 years to reclusion perpetua as
erroneously applied by the trial court.

WHEREFORE, the
appealed decisions, except as herein modified, are hereby AFFIRMED. Costs against appellant.

SO ORDERED.

Feliciano, (Chairman), Romero, Melo, and Vitug, JJ., concur.