G.R. Nos. 67801-02. September 10, 1990
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ERNESTO GONZALES Y PAGKEL, ACCUSED-APPELLANT.
FELICIANO, J.:
Appellant Ernesto Gonzales y Pagkel was
charged in two (2) separate informations[1],
one for unlawfully selling and the other for unlawfully possessing marijuana leaves, in violation of Sections 4 and 8, Article II of Republic
Act No. 6425, otherwise known as “The Dangerous Drugs Act”. The informations read as follows:
Criminal Case No. 5620:
“That on or about the 2nd day of February 1983, in the City of
Angeles, Philippines, the
above-named accused, did then and there willfully, and unlawfully sell, deliver
and/or transfer to another dried marijuana leaves, without any authority
whatsoever.”
Criminal Case No. 5619:
“That on or about the 2nd day of February 1983, in the City of
Angeles, Philippines, the said accused not being lawfully authorized to possess
or otherwise use any prohibited drug, did then and there willfully and
unlawfully have in his possession and under his custody and control dried
marijuana leaves which is a prohibited drug.”
The accused entered a plea of not guilty, and the case proceeded to trial.
The evidence for the prosecution discloses that on 2 February 1983, at about 10:30 a.m., a civilian informer came to the
office of S/Sgt. Edgardo
Raquidan of the Anti-Narcotics Command, Camp Tomas Pepito, Sto. Domingo,
Angeles City,
Pampanga, and reported on the alleged drug
trafficking activities of appellant Gonzales.
This report was relayed to the commanding officer of the Anti-Narcotics
Command at Camp Tomas Pepito, who thereupon organized
a team of five (5) members to carry out a surveillance and “buy-bust”
operation.[2]
C2C Romeo Vanzuela, a Philippine Constabulary trooper
assigned to the Anti-Narcotics Command, was designated as poseur-buyer and was
given two (2) P5.00 marked bills, bearing Serial Nos. YT712225 and XB077345, to be used in the entrapment
operation.[3]
The team left the Camp dressed in civilian clothes on
board a Land Cruiser. Some 500 meters
away from the store which was the target area, located on R.D.
Reyes St. corner Jesus
St., Barangay Lourdes
Northwest, Angeles City,
the members of the team alighted from their vehicle. C2C Romeo Vanzuela
and the civilian informer went ahead; following closely behind were S/Sgt. Raquidan and the other team members. Upon reaching the store, the civilian
informer casually introduced C2C Romeo Vanzuela to
appellant Gonzales as a friend from Manila
who wanted to buy marijuana. S/Sgt. Raquidan purchased a bottle of softdrink
from the store, all the while observing appellant Gonzales, the civilian
informer and C2C Vanzuela, from a distance of about 5
meters. Appellant Gonzales asked how
many tea bags of marijuana C2C Vanzuela wanted; in
reply, the latter inquired about the price per tea bag. Appellant Gonzales named the price of P10.00
per tea bag and then took from within or beneath the sand near his feet one (1)
tea bag which he handed to C2C Vanzuela who, in turn,
gave him the marked money in payment.
Thereupon, C2C Vanzuela gave the pre-arranged
signal by scratching his head with his hand.
The rest of the members of the team, who had been quietly observing from
nearby, rushed to the appellant and placed him under arrest. The marked P5.00 bills were found in
appellant’s possession.[4]
The team members assured appellant Gonzales that if he could turn
over to them more tea bags of marijuana, they would help him in his
“predicament”. Apparently
convinced, appellant Gonzales allegedly took from the sand four (4) more
plastic tea bags. The tea bags were sent
to the PC Crime Laboratory for chemical examination and there, the contents
thereof were positively identified as marijuana leaves. Appellant Gonzales was brought to Camp
Olivas, San
Fernando, Pampanga, for
investigation. He was detained there,
and on 7 February 1983, he
signed a statement regarding the circumstances of his arrest.[5]
For his part, appellant Gonzales denied the accusations made
against him. He contended that in the
morning of 2 February 1983,
between 11:00 and 12:00 o’clock, he was at the corner store which is about
25 meters away from his family’s house to have a P50.00 bill changed. Appellant Gonzales stated that he had
intended to give P20.00 to his mother and that a person named John changed his
P50.00 bill into four (4) P5.00 bills and three (3) P10.00 bills. Thereupon, two (2) persons arrived on the
scene, one of whom appellant recognized as S/Sgt. Privaldo. The law enforcement officers poked their guns
at appellant, handcuffed him and took him to Camp
Olivas. Appellant claims that along the way and even
at Camp Olivas, he was physically
maltreated. Appellant was twice
investigated; firstly, on the very day of his arrest on 2 February 1982; and secondly, on 5 February 1983. On the latter date, he signed an
extrajudicial statement which, he claimed before the trial court, had been
extracted from him involuntarily.[6]
Appellant’s plea of innocence and his defense did not convince the
trial court. On 1 December 1983, the trial court rendered a
decision with the following dispositive portion:
“WHEREFORE, in view of all the foregoing discussion, judgment
is hereby rendered finding accused ERNESTO GONZALES y PAGKEL guilty beyond
reasonable doubt of violation of Section 4, Article II, R.A. No. 6425, as
amended, otherwise known as ‘The Dangerous Drugs Act of 1972,’ as charged in
the Information, and the Court imposes upon accused Ernesto Gonzales y Pagkel the penalty of life imprisonment and a fine of
twenty thousand pesos (P20,000.00), and to pay the costs.
The Information for violation of Section 8 under the same law,
Criminal Case No. 5619, charging the accused for possession of the four (4) tea
bags of marijuana is to be dismissed, as it is hereby ordered DISMISSED, for
the reason that the essential element of possession necessarily is embraced or
included in the Sale, Administration, Delivery, Distribution and Transportation
of Prohibited Drugs under Section 4 thereof.
So ordered.”[7]
Appellant Gonzales is now before this Court, asserting that the
prosecution had failed to prove his guilt beyond reasonable doubt and that
accordingly, the trial court had erred in convicting him of violation of
Section 4, Article II, Republic Act No. 6425, as amended.
Appellant insists that the extrajudicial statement[8]
submitted by the prosecution in evidence had been extracted from him
involuntarily, i.e., that he was maltreated and threatened and intimidated into
signing the same. The Court notes that this extrajudicial
statement was taken into account by the trial court when it rendered the
questioned judgment of conviction. The
trial court said:
“His defense that he was maltreated and threatened into
signing the said extrajudicial statement is belied by many inconsistencies on
his part which destroyed his credibility.
If indeed he was compelled by violence, threat or intimidation into
signing it, why on earth did he not confide the same even secretly to his
relatives especially to his mother or wife [from] whom he can expect comfort
and protection so that something may be done about it by them, as according to
him they visited him often in his detention cell? All the protestations of innocence by the
accused are considered by the Court, and the same were found to be the result
of an afterthought on his part. The
extrajudicial statement, as it were, was found to be an admission of guilt on
the part of the accused, positive in its narration of facts, well-meaning and
natural; it therefore deserves full faith and credit.”[9]
(Underscoring supplied)
Although appellant Gonzales was apprised of his right to counsel,
he was not afforded an effective opportunity to obtain counsel. His sworn statement itself stated that it was
being given in the absence of counsel for appellant Gonzales:
“x x x x x
x x
x x
b) Na karapatan mo ring
kumuha ng isang abogado/manananggol na
siyang susubaybay sa iyo sa
pagsisiyasat
na ito at kung inaakala mong wala kang
ikakaya ang tanggapang ito ang siyang kukuhang
isa para sa iyo;
c) Na ang lahat ng
sasabihin sa pagsisiyasat na ito ay maaaring
gamitin ebidensiya laban o pabor sa
iyo sa alinmang
hukuman dito sa Pilipinas.
TANONG: Ito ba ay nauunawaan at naintindihan mo ang iyong mga karapatan
na nakasaad sa ilalim ng
ating Bagong Saligang Batas.
SAGOT: Opo. (Lagda ng tagapaqsalaysay)
TANONG: Nakahanda
ka bang magbigay ng kusang loob at pansarilinq salaysay kahit na wala
ka pang sariling manananggol
sa pagsisiyasat na ito.
SAGOT: Opo (Lagda ng tagapagsalaysay),
sapagkat alam ko naman ang
aking mga sinasagot.”[10]
(Underscoring supplied.)
Whether the extrajudicial confession had
been in fact extracted from appellant Gonzales by the exercise of physical
violence or intimidation upon him
is of secondary relevance; what is critical, legally speaking, is whether or
not the extrajudicial confession had been given and the right to remain silent
had been waived in the presence of accused’s counsel.
It is now too well-settled to require extensive citation of
authority that the right to remain silent and to refrain from giving an
extrajudicial confession and to have competent and independent counsel, cannot
be waived save in the presence of counsel[11]
and that an extrajudicial confession obtained under such circumstances is not
admissible in evidence.[12]
We cannot, therefore, take account of the extrajudicial confession of appellant
Gonzales. The judgment of conviction
must hence stand or fail on the basis or the other evidence of record.
Appellant Gonzales claimed that the “buy-bust”
operation allegedly mounted by the Anti-Narcotics Command, stationed at Camp
Tomas Pepito, had been merely fabricated by the
agents of that Command to pin on him responsibility for the alleged sale and
possession of marijuana leaves. The
prosecution contended otherwise. S/Sgt. Raquidan and C2C Romeo Vanzuela,
members of the team dispatched to conduct the surveillance and
“buy-bust” operation, were presented in the witness stand to narrate
to the court the events which transpired on the morning of 2 February 1983.
The trial court gave full credence to their testimony:
“After a careful study and analysis of the evidence, both for
the prosecution and the defense, and the testimonies of their witnesses which
were carefully and keenly observed in their conduct and demeanor while
testifying, weighty reasons compels the Court to accept the theory of the
prosecution. It accepts the prosecution
version which took place on when accused Ernesto Gonzales y Pagkel
was apprehended in an entrapment made by the anti-narcotics agents, through a
poseur buyer, selling marijuana contained in one (1) plastic bag with the use
of marked money in the transaction to be credible as the testimonies of the
prosecution witnesses appear to the Court to be natural, positive,
straightforward and convincing including the part given under cross-examination
by the defense.
x x x x
x x x x x“[13]
The trial court, however, overlooked
material inconsistencies in the testimony of the two (2) principal prosecution
witnesses, inconsistencies which, to the mind of the Court, seriously impair
the credibility of both the prosecution witnesses.
According to S/Sgt. Raquidan, appellant Gonzales got the first tea bag or
marijuana from where it had been buried in the sand at the very place where the
“deal” was being transacted.
Sgt. Raquidan testified as follows:
“Q From
where did the suspect actually get this tea bag when you said he took it from
the ground?
A: It
was buried in the sand, sir.
Q: Where is this place,
the very place where the suspect took the tea bag which according to you it was
buried from the sand?
A: At the same place
where they were staying.
Q: Will you stand up and
demonstrate how the suspect actually took that tea bag from the sand?
A: When C2C Vanquela gave the money then the suspect just bent down and
then got the tea bag (witness demonstrating by picking up from the ground).[14]
(Underscoring supplied)
Sgt. Raquidan
further insisted that the four (4) other tea bags which appellant was allegedly
induced to produce by a promise of assistance from the arresting officers, had
been taken by appellant Gonzales also from where they had been hidden under the
sand on the very place where the supposed sale transaction took place:
“Q Incidentally,
where did the suspect get these four (4) other tea bags?
A: From
the sand where they were buried, sir.
Q: Where
is this particular place located where you said the other four (4) tea bags
were buried?
A: Along
R.D. Reyes St.,
Corner Jesus St., Lourdes
North West, Angeles
City, sir.
Q: How
far is this place where the other four (4) tea bags were buried from the place
where you actually made the arrest of the suspect?
A: Not
more than a meter because when he bent he was able to get the four (4) tea
bags, sir.
x x
x x x x x
x x“[15]
(Underscoring supplied)
Upon the other
hand, C2C Romeo Vanzuela who claimed to have, as poseur-buyer, personally dealt with
appellant Gonzales, gave a quite different story. Like S/Sgt. Raquidan,
Romeo Vanzuela was at the scene of the transaction
and therefore could not have been mistaken, if indeed the transaction had taken
place. C2C Vanzuela
declared:
“Fiscal Deang:
Q: What
was that that this Erning was trying to ask you ‘how
many’?
A: He
was asking us how many T-bags of marijuana.
Q: What
was your answer?
A: I
asked him how much is one T-bag and Erning answered
me P10.00 per T-bag. And then he told
me to wait and when he returned he handed to me one T-bag of marijuana, sir.
Q: Did
you examine what this T-bag contains?
A: I
tried to see if it is marijuana, sir.
And I found out that it is marijuana.
Fiscal Deang:
Q: When
you saw that it was marijuana, what did you do?
A: I
gave the signal, sir.
Q: What
was that signal?
A: I
scratch (sic) my head, sir. Then when I
scratch (sic) my head, my companions came, sir.
Q: How about the marked money, what
happened to the marked money?
A: When
the T-bag was handed to me, I handed the money.
Q: To whom?
A: To
Erning, sir.
And after I gave the money, I gave the signal.
x x
x x
x x x x x“[16]
Thus, according to one principal
prosecution witness (S/Sgt. Raquidan), the tea bags
of marijuana had been concealed buried in sand immediately adjacent to the
store where the transaction allegedly took place. The other principal prosecution witness (C2C Vanzuela), upon the other hand, had stated that the tea bag
allegedly sold by the appellant Gonzales had been obtained from somewhere away
from the immediate vicinity of the alleged sale transaction. The testimony given by S/Sgt. Raquidan appears to us to be quite implausible in
character. We think it extremely
improbable that a vendor of marijuana, a prohibited drug, would store his cache
of the prohibited drug by burying the same in sand immediately outside a corner
store where people constantly pass by and which is therefore subject to
continuous visual observation both by customers of the corner store and
passers-by. The corner store did not
belong to appellant Gonzales and it was, of course, constantly accessible to
the general public.
The trial court itself must have found Sgt. Raquidan’s
testimony improbable: for it discarded such testimony and
accepted instead the version offered by C2C Romeo Vanzuela. After summarizing the evidence for the
prosecution and for the defense, the trial court made the following findings:
“The testimony of C2C Vanzuela,
which was corroborated in all its material aspects by that of S/Sgt. Raquidan, showed that with the marked money in his
possession at the target area near a store at Jesus
St., Lourdes Northwest, Angeles
City, the accused approached him
and the civilian informer. The civilian
informer introduced him (C2C Vanzuela) to the accused
this way: ‘I have a new friend from Manila
who wants to buy marijuana.’ The accused asked:
‘How many?’ C2C Vanzuela countered: ‘How much is one tea bag?’ The accused
answered: ‘P10.00 per tea bag.’
The transaction as to the ‘hot stuff’ having been agreed upon
between the seller and the buyer, the former left, and returning after a while,
he handed over to the latter one tea bagful of marijuana. The buyer, simultaneously thereafter, gave
the seller, the accused herein, the two (2) five-peso bills marked money, who
received them. It was at this point of
the transaction that the pre-arranged signal was made–the poseur buyer (C2C Vanzuela scratching his head with his hand–when, S/Sgts. Privaldo and Raquidan swooped down upon the accused, placed him under
arrest and recovered the marked money from his pocket. C2C Vanzuela gave
the tea bag of marijuana to Sgt. Rubencio Privaldo.”[17]
(Underscoring supplied)
Unlike the trial court, however, we do not believe that we can
simply discard the improbable testimony of S/Sgt. Raquidan
and adopt and rely upon that of C2C Vanzuela. We believe that the material and unexplained
inconsistency between the testimonies of the two (2) principal prosecution
witnesses relating not to inconsequential details but to the alleged sale
transaction itself, and the inherently improbable character of the testimony
given by one of the two (2) principal prosecution witnesses, had the effect of
vitiating the testimony given by the other principal prosecution witness.[18]
Why should two (2) police officers give two (2) contradictory descriptions of
the same sale transaction, which allegedly took place before their very eyes,
on the same physical location and on the same occasion? We must conclude that a reasonable doubt was generated as to whether or not the
“buy-bust” operation ever took place.
It remains only to note that the defense of the appellant, which
was simply that he had nothing to do with the alleged sale transaction, was
corroborated by Emelita Cayabyab,
owner of the corner retail store where the transaction allegedly took
place. Her testimony was summarized by
the trial court in the following manner:
“x x x x x x x x x
This witness testified that on February 2, 1983 from 9:00
to 11:30 o’clock in the morning she
was in her store at Jesus St., Lourdes
Northwest, Angeles City. Ernesto Gonzales was there asking somebody to
change his money. Then two (2) persons
came and poked their guns at Ernesto Gonzales and boarded him in their Land
Cruiser.
She did not testify in the investigation of the cases at the Office
of the City Fiscal.
On cross-examination she testified that she knows Ernesto Gonzales
for more than a year. He is not her
relative. The mother of Ernesto asked
her to testify as a witness because she was at her store when the two persons
wearing T-shirts came and took Ernesto away.
She was at the time inside her store.”[19]
We consider that the prosecution had
failed to prove beyond reasonable doubt appellant Gonzales guilt of the offense
charged.
WHEREFORE, the Decision of the trial court dated 1 December 1983 is hereby REVERSED to
the extent that it held appellant Ernesto Gonzales y Pagkel
guilty in Criminal Case No. 5620 of illegal sale of dried marijuana leaves, and
appellant Ernest Gonzales y Pagkel is hereby
ACQUITTED of the charge of illegal sale of a prohibited drug.
SO ORDERED.
Gutierrez, Jr., Bidin, and Cortes, JJ., concur.
Fernan, C.J., (Chairman), on leave.
[1]
Records, Criminal Case No. 5620, p. 2; Records, Criminal Case No. 5619, p. 2.
[2]
TSN, 5 April 1983, pp. 8-11.
[3]
Id., pp. 24-26.
[4]
Id., pp. 12-24.
[5]
Id., pp. 27-29.
[6]
TSN, 24 August 1983, pp.
4-16.
[7]
Rollo, pp. 7-13.
[8]
Folder of Exhibits, p. 6.
[9]
Regional Trial Court Decision, p. 6.
[10]
Sinumpaang Salaysay, Folder
of Exhibits, p. 6.
[11]
People v. Galit, 135 SCRA 465 (1985); Section
12 [1], Article III, 1987 Constitution; see also People v. Pineda, 157
SCRA 71 (1988); People v. Hernandez, 162 SCRA 422 (1988); People v.
Nolasco, 163 SCRA 623 (1988).
[12]
People v. Decierdo, 149 SCRA 496 (1987) and
cases cited therein; People v. Macario Diamsay, G.R. No. 67289, 5 October 1989.
[13]
Rollo, p. 11.
[14]
TSN, 5 April 1983, pp.
20-21.
[15]
Id., pp. 28-29.
[16]
TSN, 3 August 1983, pp.
9-10.
[17]
Rollo, pp.
11-12.
[18]
People v. Olaes, G.R. No. 76547, 30 July 1990.
[19]
Rollo, pp. 10-11.