FIRST DIVISION
[G.R. No. 188348. April 7, 2014.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BEBING MACALUTANG Y MUSTAPHIA, accused-appellant.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution dated April 7, 2014 which reads as follows:
"G.R. No. 188348 (People of the Philippines v. Bebing Macalutang y Mustaphia). — We resolve the appeal, filed by the accused-appellant Bebing Macalutang y Mustaphia, from the Decision 1 dated 29 August 2008 issued by the Second Division of the Court of Appeals (CA) in CA-G.R. CR.-HC No. 02845.
THE FACTS
Accused-appellant Bebing Macalutang y Mustaphia was charged with violation of Sections 5 and 11, Article II of Republic Act (R.A.) No. 9165 in two separate Informations 2 dated 15 February 2005, viz.:
(1) Criminal Case No. MC-05-8988-D for violation of Section 11:
That on or about the 14th of February 2005, in the City of Mandaluyong, Philippines, a place within the jurisdiction of this Honorable Court, the abovenamed accused, did, then and there, willfully, unlawfully, feloniously, and knowingly have in her possession, custody and control one (1) small heat-sealed transparent plastic sachet containing 0.07 gram of white crystalline substance, which was found positive for Methamphetamine Hydrochloride, commonly known as "shabu", a dangerous drug, without the corresponding license and prescription.
(2) Criminal Case No. MC-05-8989-D for violation of Section 5:
That on or about the 14th of February 2005, in the City of Mandaluyong, Philippines, a place within the jurisdiction of this Honorable Court, the abovenamed accused, without any lawful authority, did, then and there, willfully, unlawfully, feloniously, deliver, distribute, transport, or sell to a poseur-buyer, PO1 Arvin R. Genove, one (1) heat-sealed transparent plastic sachet containing 0.07 gram of white crystalline substance, which was found positive for Methamphetamine Hydrochloride, commonly known as "shabu", a dangerous drug, for the amount of P100.00 with Serial No. DP 962412 without the corresponding license and prescription, in violation of the abovecited law.
When arraigned on 02 March 2005, accused-appellant pleaded not guilty to both charges. 3
PROSECUTION'S VERSION
The CA found the following facts: IcEACH
The prosecution, through witness, PO1 Arvin Genove, who was designated [as] poseur-buyer, showed that on [14 February] 2005, at around [6 a.m.], a male confidential informant went to the headquarters of District Anti-Illegal Drugs Special Operation Group (DAID-SOG) of the Eastern Police District at Caruncho Avenue, Pasig City and reported to the unit chief, Police Senior Inspector Dennis Macalintal, the alleged selling of shabu by the appellant known as "Bing" in EDSA Central, Mandaluyong City. Acting on the report, Police Senior Inspector Macalintal formed a team to conduct a buy-bust operation against appellant. He designated SPO1 Mario Molina as teamleader, PO1 Arvin Genove as poseur-buyer, PO2 Bedo Montefalcon, PO1 Victor Bantug, and PO1 Richard Ramos as [backups]. PO1 Genove was given a P100 bill with serial number DP962412 as buy-bust money on which he placed his initial, "ARG". The team coordinated with the Philippine Drug Enforcement Agency (PDEA) which issued a Pre-Operation Report/Coordination Sheet with Control Number PDEA-NOC-1302-05-06 and a Certificate of Coordination. At about [7:30 a.m.], the buy-bust team along with the confidential informant proceeded to EDSA Central in Mandaluyong City on board an owner-type jeep to conduct the buy-bust operation.
Upon arrival at the site of operation, team leader SPO1 Molina instructed the confidential informant to locate the appellant. When he returned, the informant told the team that appellant was in front of a store in the EDSA Central marketplace. PO1 Genove and the informant immediately proceeded thereto. Informant greeted the appellant and introduced PO1 Genove as a buyer. Appellant asked PO1 Genove how much he was going to buy and he replied: "'Te, piso lang po panggamit" (P100 worth of shabu). Appellant asked for the payment and PO1 Genove handed her the marked P100 bill. Upon receipt of the money she retrieved from her pocket two (2) plastic sachets containing shabu and handed one to PO1 Genove.
Upon completion of the sale, PO1 Genove made the pre-arranged signal by scratching his head. He immediately arrested appellant and recovered from her the marked P100.00 bill and the other sachet containing shabu. While at the crime scene, PO1 Genove marked the sachets as Exhibit A "BMM-021405" and Exhibit A-1 "BMM-021405".
The two (2) sachets were submitted to Police Inspector Isidro Carino, Forensic Chemist of the Philippine National Police (PNP) Crime Laboratory who certified that the white crystalline substance was positive for methamphetamine hydrochloride. 4
DEFENSE'S VERSION
Appellant interposed the defense of denial and frame-up. She testified to the following surrounding circumstances:
That at about [10:00 a.m. on 14 February 2005], she was at Boni Avenue in front of Mercury Drug waiting for a certain Imelda, the other woman of her live-in partner, Sukarno, who promised to give her P3,000 for her fare in going home to Mindanao. While waiting, appellant received a text message from Imelda that the latter was sending her nephews to fetch her. Shortly, two men approached her and told her they were bringing her to Imelda. Believing them to be Imelda's nephews, she rode with them in a white car. However, instead of bringing her to Imelda's residence in Floodway, Pasig City, she was brought to the Eastern Police District Headquarters for unknown reasons. At the Headquarters, she was placed in a room and was told to call any of her family members and ask them to go to the police station. Later, she was brought to the clinic for a check-up and was asked to urinate. Thereafter, she was brought to the Mandaluyong City Jail where she was detained. 5
THE RULING OF THE RTC
The Regional Trial Court (RTC) Branch 214 of Mandaluyong City, in its Decision 6 dated 15 February 2007, found the accused guilty beyond reasonable doubt of violating Sections 11 and 5, Article II of R.A. 9165. It ruled that her claim of denial and frame-up cannot prevail over the presumption of regularity in the performance of official duty and the positive declaration of Police Officer 1 (PO1) Genove. 7
The dispositive portion of the Decision reads:
WHEREFORE, judgment is hereby rendered as follows:
(1) In Criminal Case No. MC-05-8988-D, accused BEBING MACALUTANG is hereby found GUILTY BEYOND REASONABLE DOUBT of unlawfully possessing 0.07 grams of shabu in violation of Section 11, Article II of R.A. 9165, and she is hereby sentenced to suffer the penalty of TWELVE YEARS (12) YEARS and ONE (1) DAY and to pay a fine of THREE HUNDRED THOUSAND (P300,000) PESOS; and,
(2) In Criminal Case No. MC-05-8989-D, accused BEBING MACALUTANG is hereby found GUILTY BEYOND REASONABLE DOUBT of unlawfully selling, delivering, distributing 0.07 grams of shabu in violation of Section 5, Article II of R.A. 9165, and she is hereby sentenced to suffer the penalty of LIFE IMPRISONMENT and to pay a fine of FIVE HUNDRED THOUSAND (P500,000) PESOS.
Further, the shabu taken and seized from the accused during the aforesaid operation is forfeited and confiscated in favor of the Government and shall be turned over to the PDEA pursuant to law for proper disposal without delay. With costs. HcDSaT
SO ORDERED. 8
THE RULING OF THE CA
The CA reviewed the appeal hinged on the following issues:
I
THE LOWER COURT ERRED IN FINDING THE ACCUSED GUILTY DESPITE FAILURE OF THE PROSECUTION TO PROVE HER GUILT BEYOND REASONABLE DOUBT.
II
THE LOWER COURT ERRED IN GIVING FAITH AND CREDENCE TO THE UNRELIABLE TESTIMONY OF THE POSEUR-BUYER AND IN TOTALLY DISREGARDING THE VERSION OF THE ACCUSED. 9
The appellate court affirmed the ruling of the lower court, but modified the penalty in this wise:
WHEREFORE, premises considered, the instant appeal is DENIED. The Joint Decision dated 15 February 2007 of the RTC of Mandaluyong City, Branch 214 is MODIFIED in that for the offense of violation of Section 11, Article II or R.A. No. 9165, appellant is hereby sentenced to suffer the penalty of imprisonment of TWELVE (12) years and ONE (1) day as minimum and THIRTEEN (13) years as maximum. In all other respects, the Decision is AFFIRMED.
SO ORDERED. 10
Hence, this appeal in which the same issues presented before the CA are reiterated before this Court.
THIS COURT'S RULING
We sustain the conviction of accused-appellant.
The guilt of accused-appellant was
In every prosecution for the illegal sale of shabu, the following elements must be proved: (1) identity of the buyer and the seller, the object and the consideration; and (2) the delivery of the thing sold and the payment therefor. 11ATCaDE
In a prosecution for the illegal possession of shabu, on the other hand, the following elements must be proved: (1) that the accused was in possession of the object identified as a prohibited or regulated drug; (2) that the drug possession was not authorized by law; and (3) that the accused freely and consciously possessed the drug. 12
The CA carefully scrutinized the testimonial evidence presented by the prosecution before the trial court. It found that the poseur-buyer, PO1 Genove, positively testified that the sale of shabu took place, that accused-appellant was the seller, and that she was also illegally in possession of another sachet of shabu upon her apprehension.
Q: Right after the introduction was made by the confidential informant to alias "Bing" that you are a potential buyer and user, what happened next?
A: He asked me how much I will buy, sir.
Q: Who asked you?
A: Alias "Bing", Your Honor.
Q: So what did you reply if any?
A: I said, "'te, piso lang panggamit," sir.
Q: What do you mean "piso lang panggamit"?
A: P100 worth of shabu, sir.
Q: After uttering the word [sic] "'Te, piso lang panggamit," what did the accused do if any?
A: She asked me for the money, sir.
Q: To whom?
A: From me, sir, she was asking for my payment.
Q: And what did you do thereafter?
A: I gave her the P100 bill which I previously marked, sir.
Q: Are you referring to the buy-bust money that was previously marked during the briefing?
A: Yes, sir.
Q: Right after handing this buy-bust money to the accused, what happened now [sic]?
A: She took from her right hand pocket something, sir.
Q: And then thereafter what happened?
A: She brought out two (2) plastic sachets and then gave me one (1) of the sachets, sir. 13
The same poseur-buyer also testified on the identity of the shabu and the subsequent chain of custody of the seized evidence. He narrated in open court that he immediately marked the seized evidence right after the arrest of the accused, and that the evidence was thereafter forwarded to the Philippine National Police (PNP) Crime Laboratory.
Q: Right after affecting the arrest of the accused what happened next, Mr. Witness?
A: I recovered from her right hand the buy bust money and another plastic sachet, sir.
Q: And what did you do with the other plastic sachet which you said you recovered from the accused?
A: I also marked it, sir.
Q: If that will be shown to you, would you be able to identify the same?
A: Yes, sir. 14
xxx xxx xxx
Q: Showing to you Exhibits "A-1" and "A-2", consisting of plastic sachet containing white crystalline substance. What relation, if any, (sic) these plastic sachets to the one you mentioned a while ago? DSITEH
A: This is the one that I bought from the accused, and this one, ma'am, is the plastic I confiscated from her, ma'am. 15
xxx xxx xxx
Q: Now, who placed the marking, you would notice that notations Exhibits A BMM-021405 (sic). Who placed those markings?
A: I was the one, ma'am.
Q: Underneath is initial, "ARG"?
A: This is my initial, ma'am.
Q: And so with this Exhibit B [sic]-1?
A: Yes, ma'am. 16
xxx xxx xxx
Q: How about the evidence which you said [sic] recovered and seized from the accused, what did you do with it?
A: It was forwarded to the PNP Crime Laboratory, sir. 17
We accord these findings with respect. It is a fundamental rule that the trial court's findings that are factual in nature and that involve the credibility of witnesses are accorded with respect when they show no glaring errors; gross misapprehension of facts; or speculative, arbitrary, and unsupported conclusions. 18 This rule holds all the more so when such findings are also affirmed by the CA as it is in this case.
The inconsistency is
Meanwhile, accused-appellant alludes to an inconsistency in the testimony of PO1 Genove, who testified on 23 June 2005 that he paid a marked P100 bill for the sachet of shabu; and, on 09 May 2006, when he testified that he paid P500 for the shabu. 19
We agree, however, with the CA ruling that the inconsistency is minor and inconsequential and does not adversely affect the credibility of the poseur-buyer. 20 In this case, the testimony of PO1 Genove reveals that he was able to identify in open court the P100 bill recovered from the accused-appellant and marked with the former's initials, "ARG". 21 For a successful appeal, the inconsistencies brought up should pertain to that crucial moment when the accused-appellant was caught selling shabu, not to peripheral matters. 22
Denial is a weak defense.
Finally, accused-appellant's version is predicated on bare denial, which was uncorroborated by any other evidence. We have ruled, however, that "denials unsubstantiated by convincing evidence are not enough to engender reasonable doubt particularly where the prosecution presents sufficiently telling proof of guilt." 23 In the absence of any intent on the part of the police authorities to falsely impute the crime to the accused, the presumption of regularity in the performance of duty stands. 24
As to the penalty imposed, Section 11, Article II of R.A. 9165, penalizes the crime of illegal possession of less than five grams of shabu with imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine ranging from three hundred thousand pesos (P300,000) to four hundred thousand pesos (P400,000). Meanwhile, Section 5, Article II of the same law, penalizes the crime of unauthorized sale of shabu, regardless of quantity and purity, with life imprisonment to death and a fine ranging from five hundred thousand pesos (P500,000) to ten million pesos (P10,000,000).
This Court agrees with the CA in modifying the penalty and applying R.A. 4103 or the Indeterminate Sentence Law. Thus, in light of the quantity of the drug in the illegal possession offense, this Court concurs with the CA's modification of the penalty imposed to thirteen (13) years instead of the maximum twenty (20) years imposed by law.
WHEREFORE, premises considered, the appeal is hereby DENIED. The assailed Decision dated 29 August 2008 issued by the Second Division of the Court of Appeals in CA-G.R. CR.-HC No. 02845 is AFFIRMEDin toto.
SO ORDERED."
Very truly yours,
(SGD.) EDGAR O. ARICHETADivision Clerk of Court
Footnotes
1. Rollo, pp. 2-22; Penned by CA Associate Justice Portia Aliño-Hormachuelos and concurred in by Associate Justices Hakim S. Abdulwahid and Teresita Dy-Liacco Flores.
2. Rollo, pp. 4-5.
3. CA rollo, p. 51.
4. Rollo, pp. 6-8.
5. Id. at 8.
6. CA rollo, pp. 15-18; Penned by former RTC Judge (now CA Justice) Edwin D. Sorongon.
7. Rollo, pp. 8-9.
8. CA rollo, p. 18.
9. Id. at 36.
10. Rollo, pp. 20-21.
11. People v. Soriano, 549 Phil. 250, 256 (2007).
12. People v. Del Norte, 29 March 2004, 426 SCRA 383.
13. Rollo, pp. 12-13; TSN, Testimony of PO1 Arvin Genove, 23 June 2005, pp. 11-15.
14. Id. at 14; TSN, Testimony of PO1 Arvin Genove, 23 June 2005, pp. 11-15.
15. Id. at 15; TSN, Testimony of PO1 Arvin Genove, 9 May 2006, pp. 4-5.
16. Id.
17. Id. at 16; TSN, Testimony of PO1 Arvin Genove, 23 June 2005, pp. 19-20.
18. People v. Bayani, 577 Phil. 607 (2008).
19. Rollo, p. 18.
20. Id.
21. Id. at 12-13; TSN, Testimony of PO1 Arvin Genove, 23 June 2005, pp. 11-15.
22. People v. Razul, 441 Phil. 62, 88 (2002).
23. People v. Del Mundo, 418 Phil. 740, 753 (2001).
24. People v. Cruz, G.R. No. 185381, December 16, 2009, 608 SCRA 350, 368.