G.R. No. 182010 August 25, 2010

SUSAN ESQUILLO Y ROMINES, Petitioner, vs.PEOPLE OF THE PHILIPPINES, Respondent.

D E C I S I O N

CARPIO MORALES, J.:

Via petition erroneously captioned as one for Certiorari, Susan Esquillo y Romines (petitioner) challenges the November 27, 2007 Decision1 of the Court of Appeals in CA-G.R. CR No. 27894 which affirmed the July 28, 2003 Decision of Branch 116 of the Regional Trial Court (RTC) of Pasay City in Criminal Case No. 02-2297 convicting Susan Esquillo y Romines (petitioner) for violating Section 11, Article II of Republic Act (R.A.) No. 9165 (the Comprehensive Dangerous Drugs Act of 2002) – possession of methamphetamine hydrochloride or shabu.

The accusatory portion of the Information dated December 12, 2002 indicting petitioner reads:

That on or about the 10th day of December, 2002 in Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without authority of law, did then and there willfully, unlawfully and feloniously have in her possession, custody and control 0.1224 gram of Methylamphetamine Hydrochloride (shabu).2 (underscoring supplied)

At the trial, petitioner admitted the genuineness and due execution of the documentary evidence of the prosecution, particularly the Dangerous Drugs and Toxicology Reports issued by National Bureau of Investigation (NBI) Forensic Chemist Antonino de Belen (de Belen),3 subject to her defenses, to thus dispense with the testimony of de Belen.

De Belen recorded the results of the laboratory examination of the contents of the sachet in Dangerous Drugs Report No. DD-02-613,4 viz:

x x x x

SPECIMEN:

White crystalline substance contained in a heat-sealed transparent plastic sachet marked "SRE" and further placed in bigger marked transparent plastic sachet.

x x x x

F I N D I N G S:

Net Weight of specimen = 0.1224 gram

Examinations conducted on the above-mentioned specimen gave POSITIVE RESULTS for METHAMPHETAMINE HYDROCHLORIDE, a dangerous drug. x x x

x x x x (emphasis and underscoring supplied)

With respect to the examination of the urine of petitioner, de Belen recorded the results thereof in Toxicology Report No. TDD-02-41285 reading:

x x x x

SPECIMEN:

Urine of one SUSAN ESQUILLO Y ROMINES. 37 y/o, married, jobless, of no. 1159 Bo. Bayanihan, Maricaban, Pasay City.

x x x x

F I N D I N G S:

Volume of urine = 60 mL.

pH of urine = 5.0

Appearance = yellow orange, turbid

Examinations conducted on the above-mentioned specimen gave POSITIVE RESULTS for the presence of METHAMPHETAMINE HYDROCHLORIDE, and its metabolite AMPHETAMINE. x x x

x x x x (emphasis and underscoring supplied)

Based on its documentary evidence and the testimony of PO1 Alvin Cruzin (PO1 Cruzin),6 a member of the Pasay City Police Station Special Operations Group (SOG), the prosecution established its version as follows:

On the basis of an informant’s tip, PO1 Cruzin, together with PO2 Angel Aguas (PO2 Aguas), proceeded at around 4:00 p.m. on December 10, 2002 to Bayanihan St., Malibay, Pasay City to conduct surveillance on the activities of an alleged notorious snatcher operating in the area known only as "Ryan."

As PO1 Cruzin alighted from the private vehicle that brought him and PO2 Aguas to the target area, he glanced in the direction of petitioner who was standing three meters away and seen placing inside a yellow cigarette case what appeared to be a small heat-sealed transparent plastic sachet containing white substance. While PO1 Cruz was not sure what the plastic sachet contained, he became suspicious when petitioner started acting strangely as he began to approach her. He then introduced himself as a police officer to petitioner and inquired about the plastic sachet she was placing inside her cigarette case. Instead of replying, however, petitioner attempted to flee to her house nearby but was timely restrained by PO1 Cruzin who then requested her to take out the transparent plastic sachet from the cigarette case.

After apprising petitioner of her constitutional rights, PO1 Cruzin confiscated the plastic sachet7 on which he marked her initials "SRE." With the seized item, petitioner was brought for investigation to a Pasay City Police Station where P/Insp. Aquilino E. Almanza, Chief of the Drug Enforcement Unit,

prepared a memorandum8 dated December 10, 2002 addressed to the Chief Forensic Chemist of the NBI in Manila requesting for: 1) a laboratory examination of the substance contained in the plastic sachet to determine the presence of shabu, and 2) the conduct of a drug test on the person of petitioner. PO1 Cruzin and PO2 Aguas soon executed a Joint Affidavit of Apprehension9 recounting the details of their intended surveillance and the circumstances leading to petitioner’s arrest.

Repudiating the charges, petitioner10 gave the following tale:

At around 1:00 to 2:00 p.m. of the date in question, while she was sick and resting at home, several policemen in civilian garb with guns tucked in their waists barged in and asked her whether she knew one named "Ryan" who they claimed was a notorious snatcher operating in the area, to which she replied in the negative. The police officers then forced her to go with them to the Pasay City Police Station-SOG office where she was detained.

While she was under detention, the police officers were toying with a wallet which they claimed contained shabu and recovered from her.

In fine, petitioner claimed that the evidence against her was "planted," stemming from an all too obvious attempt by the police officers to extort money from her and her family.

Two other witnesses for the defense, petitioner’s daughter Josan Lee11 and family friend Ma. Stella Tolentino,12 corroborated petitioner’s account. They went on to relate that the police officers never informed them of the reason why they were taking custody of petitioner.

By Decision13 of July 28, 2003, the trial court found petitioner guilty of illegal possession of Methylamphetamine Hydrochloride or shabu, disposing as follows:

WHEREFORE, in light of the foregoing premises and considerations, this Court hereby renders judgment finding the accused Susan Esquillo y Romines GUILTY beyond reasonable doubt of the crime of Violation of par. 3 of Section 11, Article II of R. A. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, and absent any modifying circumstance to either aggravate or mitigate the criminal liability of the same accused, and furthermore, applying the provisions of the Indeterminate Sentence Law, the same accused is hereby sentenced to suffer the penalty of imprisonment ranging from Eight (8) years and One (1) day, as minimum, to Fourteen (14) years, Eight (8) months and One (1) day, as maximum, and to pay a fine of P350,000.00, Philippine Currency, plus costs.

The 0.1224 gram of Methylamphetamine Hydrochloride or "Shabu" involved in this case is declared forfeited in favor of the Government and ordered to be turned over to the Philippine Drug Enforcement Agency (PDEA) for proper and appropriate disposition in accordance with the provisions of the law.14 (underscoring supplied)

Before the Court of Appeals, appellant questioned as illegal her arrest without warrant to thus render any evidence obtained on the occasion thereof inadmissible.

In its challenged Decision affirming petitioner’s conviction, the appellate court, citing People v. Chua,15 held that the police officers had probable cause to search petitioner under the "stop-and-frisk" concept, a recognized exception to the general rule prohibiting warrantless searches.16

Brushing aside petitioner’s defense of frame-up, the appellate court noted that petitioner failed to adduce evidence that the arresting officers were impelled by any evil motive to falsely charge her, and that she was even found positive for substance abuse.1âwphi1

In her present petition, petitioner assails the appellate court’s application of the "stop-and-frisk" principle in light of PO1 Cruzin’s failure to justify his suspicion that a crime was being committed, he having merely noticed her placing something inside a cigarette case which could hardly be deemed suspicious. To petitioner, such legal principle could only be invoked if there were overt acts constituting unusual conduct that would arouse the suspicion.17

Respondent, through the Office of the Solicitor General, prays for the affirmance of the appealed decision but seeks a modification of the penalty to conform to the pertinent provisions of R.A. No. 9165.

Appellant’s conviction stands.

Petitioner did not question early on her warrantless arrest – before her arraignment. Neither did she take steps to quash the Information on such ground. Verily, she raised the issue of warrantless arrest – as well as the inadmissibility of evidence acquired on the occasion thereof– for the first time only on appeal before the appellate court.18 By such omissions, she is deemed to have waived any objections on the legality of her arrest.19

Be that as it may, the circumstances under which petitioner was arrested indeed engender the belief that a search on her was warranted. Recall that the police officers were on a surveillance operation as part of their law enforcement efforts. When PO1 Cruzin saw petitioner placing a plastic sachet containing white crystalline substance into her cigarette case, it was in his plain view. Given his training as a law enforcement officer, it was instinctive on his part to be drawn to curiosity and to approach her. That petitioner reacted by attempting to flee after he introduced himself as a police officer and inquired about the contents of the plastic sachet all the more pricked his curiosity.

That a search may be conducted by law enforcers only on the strength of a valid search warrant is settled. The same, however, admits of exceptions, viz:

(1) consented searches; (2) as an incident to a lawful arrest; (3) searches of vessels and aircraft for violation of immigration, customs, and drug laws; (4) searches of moving vehicles; (5) searches of automobiles at borders or constructive borders; (6) where the prohibited articles are in "plain view;" (7) searches of buildings and premises to enforce fire, sanitary, and building regulations; and (8) "stop and frisk" operations.20 (emphasis underscoring supplied)

In the instances where a warrant is not necessary to effect a valid search or seizure, the determination of what constitutes a reasonable or unreasonable search or seizure is purely a judicial question, taking into account, among other things, the uniqueness of the circumstances involved including the purpose of the search or seizure, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched, and the character of the articles procured.21

Elucidating on what includes "stop-and-frisk" operation and how it is to be carried out, the Court in People v. Chua22 held:

. . . the act of a police officer to stop a citizen on the street, interrogate him, and pat him for weapon(s) or contraband. The police officer should properly introduce himself and make initial inquiries, approach and restrain a person who manifests unusual and suspicious conduct, in order to check the latter’s outer clothing for possibly concealed weapons. The apprehending police officer must have a genuine reason, in accordance with the police officer’s experience and the surrounding conditions, to warrant the belief that the person to be held has weapons (or contraband) concealed about him. It should therefore be emphasized that a search and seizure should precede the arrest for this principle to apply.

This principle of "stop-and-frisk" search was invoked by the Court in Manalili v. Court of Appeals. In said case, the policemen chanced upon the accused who had reddish eyes, walking in a swaying manner, and who appeared to be high on drugs. Thus, we upheld the validity of the search as akin to a "stop-and-frisk." In People v. Solayao, we also found justifiable reason to "stop-and-frisk" the accused after considering the following circumstances: the drunken actuations of the accused and his companions, the fact that his companions fled when they saw the policemen, and the fact that the peace officers were precisely on an intelligence mission to verify reports that armed persons w[h]ere roaming the vicinity. (emphasis and underscoring supplied; citations omitted)1âwphi1

What is, therefore, essential is that a genuine reason must exist, in light of the police officer’s experience and surrounding conditions, to warrant the belief that the person who manifests unusual suspicious conduct has weapons or contraband concealed about him. Such a "stop-and-frisk" practice serves a dual purpose: (1) the general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and (2) the more pressing interest of safety and self-preservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer.23

From these standards, the Court finds that the questioned act of the police officers constituted a valid "stop-and-frisk" operation. The search/seizure of the suspected shabu initially noticed in petitioner’s possession - later voluntarily exhibited24 to the police operative - was undertaken after she was interrogated on what she placed inside a cigarette case, and after PO1 Cruzin introduced himself to petitioner as a police officer. And, at the time of her arrest, petitioner was exhibiting suspicious behavior and in fact attempted to flee after the police officer had identified himself.

It bears recalling that petitioner admitted the genuineness and due execution of the Dangerous Drugs and Toxicology Reports, subject, however, to whatever available defenses she would raise. While such admissions do not necessarily control in determining the validity of a warrantless search or seizure, they nevertheless provide a reasonable gauge by which petitioner’s credibility as a witness can be measured, or her defense tested.

It has not escaped the Court’s attention that petitioner seeks exculpation by adopting two completely inconsistent or incompatible lines of defense. On one hand, she argues that the "stop-and-frisk" search upon her person and personal effects was unjustified as it constituted a warrantless search in violation of the Constitution. In the same breadth, however, she denies culpability by holding fast to her version that she was at home resting on the date in question and had been forcibly dragged out of the house by the police operatives and brought to the police station, for no apparent reason than to try and extort money from her. That her two witnesses – a daughter and a friend – who were allegedly present at the

time of her arrest did not do anything to report it despite their claim that they were not informed why she was being arrested, should dent the credibility of their testimony.

Courts have tended to look with disfavor on claims of accused, such as those of petitioner’s, that they are victims of a frame-up. The defense of frame-up, like alibi, has been held as a shop-worn defense of the accused in drug-related cases, the allegation being easily concocted or contrived. For this claim to prosper, the defense must adduce clear and convincing evidence to overcome the presumption of regularity of official acts of government officials. This it failed to do.

Absent any proof of motive to falsely accuse petitioner of such a grave offense, the presumption of regularity in the performance of official duty and the findings of the trial court with respect to the credibility of witnesses prevail over that of petitioner.25

A word on the penalty.

While the appellate court affirmed the trial court’s decision, it overlooked the error in the penalty imposed by the trial court. The trial court, applying the provisions of the Indeterminate Sentence Law, sentenced petitioner to "suffer the penalty of imprisonment ranging from Eight (8) years and One (1) day, as minimum, to Fourteen (14) years, Eight (8) months and One (1) day, as maximum."

Article II, Section 11 of R.A. No. 9165 provides, however:

Section 11. Possession of Dangerous Drugs.

x x x x

Otherwise, if the quantity involved is less than the foregoing quantities, the penalties shall be graduated as follows:

x x x x

(3) 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), if the quantities of dangerous drugs are less than five (5) grams of opium, morphine, heroin, cocaine or cocaine hydrochloride, marijuana resin or marijuana resin oil, metamphetamine hydrochloride or "shabu" or other dangerous drugs such as, but not limited to MDMA or "ecstacy," PMA, TMA, LSD, GHB and those similarly designed or newly introduced drugs and their derivatives, without having any therapeutic value or if the quantity possesses is far behind therapeutic requirements; or less than three hundred (300) grams of marijuana. (emphasis and underscoring supplied)

Section 1 of the Indeterminate Sentence Law provides that when the offense is punished by a law other than the Revised Penal Code, "the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by law and the minimum shall not be less than the minimum term prescribed by the same."

The prayer of the Office of the Solicitor General for a modification of the penalty is thus in order.

The Court, therefore, imposes on petitioner the penalty of imprisonment of twelve (12) years and one (1) day, as minimum, to fourteen (14) years, as maximum.

WHEREFORE, the assailed decision of the Court of Appeals is AFFIRMED, with the MODIFICATION that the penalty of imprisonment shall be twelve (12) years and one (1) day, as minimum, to fourteen (14) years, as maximum. In all other respects, the decision of the RTC in Criminal Case No. 02-2297 is AFFIRMED.

SO ORDERED.

Footnotes

1 Penned by Associate Justice Ricardo R. Rosario, with the concurrence of Associate Justices Rebecca De Guia-Salvador and Magdangal M. De Leon; CA rollo, pp. 108-116.2 Records, p. 5.3 TSN. May 5, 2003, pp. 2-8.4 Vide Exhibit "C," records, p. 116.5 Vide Exhibit "D," id. at 117.6 TSN, May 29, 2003, pp. 2-19.7 Exhibit "A-1-a."8 Exhibits "A" and "B," records, pp. 114-115.9 Exhibits "E" to "E-2," id. at 118.10 TSN, June 24, 2003, pp. 19-29.11 TSN, June 19, 2003, pp. 2-10.12 TSN, June 24, 2003, pp. 2-18.13 Rendered by Judge Eleuterio F. Guerrero; records, pp. 143-150.14 Id. at 150.15 G.R. No. 136066-67, February 4, 2003, 396 SCRA 657.16 CA rollo, pp. 114-115.17 Rollo, pp. 18-22.18 CA rollo, pp. 54-59.19 People v. Kimura, G.R. No. 130805, April 27, 2004, 428 SCRA 51, 61 citing People v. Lagarto, 326 SCRA 693, 749 (2000); People v. Timon, 281 SCRA 579, 597 (1997).20 People v. Agulay, G.R. No. 181747, September 26, 2008, 566 SCRA 571, 594.21 People v. Nuevas, G.R. No. 170233, February 22, 2007, 516 SCRA 463, 476.22 Supra, note 15.23 Malacat v. Court of Appeals, G.R. No. 123595, December 12, 1997, 283 SCRA 159, 177.24 TSN, May 29, 2003, pp. 7-8.25 People v. Teodoro, G.R. No. 185164, June 22, 2009, 590 SCRA 494, 507-508.

G.R. No. 182555 February 8, 2011

LENIDO LUMANOG and AUGUSTO SANTOS, Petitioners, vs.PEOPLE OF THE PHILIPPINES, Respondent.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 185123

CESAR FORTUNA, Petitioner, vs.PEOPLE OF THE PHILIPPINES, Respondent.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 187745

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs.SPO2 CESAR FORTUNA y ABUDO, RAMESES DE JESUS y CALMA, LENIDO LUMANOG y LUISTRO, JOEL DE JESUS y VALDEZ and AUGUSTO SANTOS y GALANG, Accused,

RAMESES DE JESUS y CALMA and JOEL DE JESUS y VALDEZ, Accused-Appellants.R E S O L U T I O N

VILLARAMA, JR., J.:

This resolves the motions for reconsideration separately filed by Lenido Lumanog and Augusto Santos, Cesar Fortuna and Rameses de Jesus assailing our Decision dated September 7, 2010 convicting them of the crime of murder, the dispositive portion of which reads:

WHEREFORE, the consolidated petitions and appeal are hereby DISMISSED. The Decision dated April 1, 2008 of the Court of Appeals in CA-G.R. CR-HC No. 00667 is hereby AFFIRMED with MODIFICATIONS in that the civil indemnity for the death of Col. Rolando N. Abadilla is hereby increased to P75,000.00, and the amounts of moral and exemplary damages awarded to his heirs are reduced to P75,000.00 and P30,000.00, respectively.

With costs against the accused-appellants.

SO ORDERED.1

Lumanog and Augusto Santos seek the reversal of their conviction on the following grounds:

The Honorable Supreme Court erred in:

I. Setting out in the facts of the case and the contents of inadmissible extrajudicial confessions;

II. Not including the extrajudicial confession of Lorenzo delos Santos as excluded evidence;

III. Applying the ruling in People v. Rivera "that the testimony of a sole eyewitness is sufficient to support a conviction so long as it is clear, straightforward and worthy of credence by the trial court";

IV. According finality to the evaluation made by the lower court of the testimony of Freddie Alejo;

V. Ruling that there was positive identification;

VI. Finding "none of the danger signals enumerated by Patrick M. Wall" when 3, 7, 10, 11, 12 in said enumeration are present;

VII. Dismissing the mismatch between the prior description given by the witness and the actual appearances of the accused;

VIII. Relying on the ocular inspection conducted at a time when a material condition is significantly altered;

IX. Ruling that the inconsistencies in Alejo’s earlier statement and his in-court testimony have been explained;

X. Not discrediting Alejo’s testimony despite acceptance of benefits from the Abadilla family;

XI. Holding that the acquittal of Lorenzo delos Santos does not necessarily benefit the appellants;

XII. Ruling that the ballistic and fingerprint examination results are inconclusive and not indispensable;

XIII. Not considering the totality of evidence presented by the defense as against the alleged "positive identification" of the accused.

XIV. Allowing Justice Jose Catral Mendoza to take part in the deliberation and the voting;

XV. Dismissing the evidence presented by Augusto Santos;

XVI. Ruling that the silence of accused Lumanog amounts to a quasi-confession;

XVII. Holding that the delay of (4) four years during which the case remained pending with the CA and this Court was not unreasonable, arbitrary or oppressive.2

Rameses de Jesus raised the following grounds in his motion:

I.

THE HONORABLE SUPREME COURT GRAVELY ERRED IN HEAVILY RELYING ON THE LONE ALLEGED EYEWITNESS SECURITY GUARD (SG) FREDDIE ALEJO’S TESTIMONY, WHICH WAS CHARACTERIZED BY MATERIAL OMISSIONS, PATENT INCREDIBILITY, CONTRADICTIONS AND DISCREPANCIES.

II.

THE HONORABLE SUPREME COURT GROSSLY MISAPPRECIATED THE FIRST SWORN STATEMENT GIVEN BY SG FREDDIE ALEJO, WHEREIN HE STATED THAT THERE WERE FOUR (4) SUSPECTS WHO PERPETRATED THE CRIME CONTRARY TO HIS SUBSEQUENT TESTIMONY IN OPEN COURT.

III.

THE HONORABLE SUPREME COURT FAILED TO APPRECIATE THE PERSONAL CIRCUMSTANCES OF THE ACCUSED-APPELLANTS, WHICH WOULD SHOW AS HIGHLY UNLIKELY THEIR ALLEGED COLLECTIVE GUILT AND CONSPIRACY.

IV.

THE HONORABLE SUPREME COURT FAILED TO GIVE WEIGHT TO PHYSICAL EVIDENCE, PARTICULARLY THE EXCULPATORY BALLISTICS AND DACTYLOSCOPY EVIDENCE, AND EXPERT TESTIMONY PRESENTED BY THE DEFENSE.3

On his part, Cesar Fortuna argues that:

THE LONE, CONTRADICTED AND INCREDIBLE TESTIMONY OF S/G ALEJO IS NOT SUFFICIENT TO PROVE THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT4

At the inception, let it be emphasized that the filing of a motion for reconsideration does not impose on us the obligation to discuss and rule again on the grounds relied upon by the movant which are mere reiteration of the issues previously raised and thoroughly determined and evaluated in our Decision being questioned.5 In particular, the Court need not dwell again on the extrajudicial confessions of Joel de Jesus and Lorenzo delos Santos which we have held inadmissible, the delay in the resolution of the appeals before the CA and this Court which under the circumstances cannot be deemed unreasonable or arbitrary, the inconclusive ballistic and fingerprint examination results, and the effect of Lorenzo delos Santos’ acquittal to the rest of appellants. These matters have been passed upon and adequately discussed in our Decision.

In fine, the accused-movants strongly assail the weight and credence accorded to the identification of the accused by the lone eyewitness presented by the prosecution, security guard Freddie Alejo. It was pointed out, among others, that: (1) in his statement given to the police investigators immediately after the incident, Alejo mentioned only four suspects, contrary to his subsequent testimony in court; it was impossible for him not to mention the two men he had seen walking back and forth before the shooting; (2) Alejo accepted financial support and benefits from the Abadilla family which could have colored his testimony against the accused; (3) his in-court identification of the six accused is questionable and unreliable considering that it referred to them only by numbers and he had given prior description of only two suspects; and (4) the ocular inspection conducted by the trial court to confirm Alejo’s observations was likewise unreliable because it was made at a time when a material condition is significantly altered, i.e., it was held from 10:00 a.m. onwards whereas the incident occurred between 8:30 and 9:00 a.m. when the glare of the morning sun directly hits the guard post where Alejo was stationed.

Fortuna submitted an Affidavit dated November 12, 2009 executed by a certain Orencio G. Jurado, Jr. who claims to be one of the police officers initially assigned to investigate the case. Fortuna contends

that said belated statement would certainly cast doubt on the procedures undertaken by the police authorities in the apprehension of the likely perpetrators.

We find the motions bereft of merit.

While it is true that Alejo mentioned only four and not six suspects in his June 13, 1996 sworn statement, this did not impair his testimony as an eyewitness. Alejo was simply responding to specific questions as to what he had witnessed during the shooting incident. Herein quoted is an excerpt from the questioning by SPO1 Edilberto S. Nicanor of the Criminal Investigation Division (CID) at Camp Karingal (PNP-NCR) and Alejo’s answers thereto:

08. T - Habang ikaw ay naka-duty bilang guwardiya sa 211 Katipunan Road, Quezon City, itong araw na ito, may napansin ka bang hindi pangkaraniwang pangyayari?

S - Mayroon, Sir.

09. T – Ano iyon?

S - May binaril na sakay ng kotse sa harap ng puwesto ko sir.

10. T - Anong oras ito nangyari?

S - 8:40 ng umaga kanina sir, more or less (13 June 1996)

11. Tanong : Sino ba itong binaril na tinutukoy mo, kung kilala mo?

Sagot : Isang hindi ko kilala na lalaki sir.

12. T - Sino naman ang bumaril sa biktima na ito, kung kilala mo?

S - Apat na hindi kilalang lalaki sir na armado ng baril.

x x x x6 (Emphasis supplied.)

The foregoing shows that Alejo merely gave the responsive answer to the question as to those persons whom he saw actually shoot the victim who was in his car. As the question was phrased, Alejo was not being asked about the persons who had participation or involvement in the crime, but only those who actually fired at the victim. Hence, he replied that there were four (4) armed men who suddenly fired shots at the victim. What followed was Alejo’s narration of what the gunmen further did to the already wounded victim, to those people within the vicinity -- including himself who was ordered at gunpoint to lie down and not interfere -- and until the firing stopped as the suspects ran away. Clearly, it was not a fatal omission on the part of Alejo not to include in his first affidavit the two other suspects who were acting as lookouts. During his testimony in court, Alejo was able to fully recount the details and state that there were two men walking back and forth before the shooting. It is settled that contradictions between the contents of an affiant’s affidavit and his testimony in the witness stand do not always militate against the witness’ credibility. This is so because affidavits, which are usually taken ex parte, are often incomplete and inaccurate.7

There is likewise nothing irregular in Alejo’s manner of testifying in court, initially referring to the accused by numbers, to indicate their relative positions as he remembered them, and the individual participation of each in the violent ambush of Abadilla. As already explained in our decision, Alejo’s elevated position from the guardhouse gave him such a clear and unobstructed view of the incident that he was able to recognize the faces and physical features of the accused at the time. When two of the accused actually poked a gun at him, it gave him more opportunity to see the faces of the accused who had briefly turned their eyes on him. Furthermore, experience dictates, precisely because of the unusual acts of violence committed right before witnesses’ eyes, that they remember with a high degree of reliability the identity of criminals.8 Indeed, Alejos’ recollection is not of "superhuman" level as accused now make it appear, considering that he was a trained security guard, whose job demands extra perceptiveness and vigilance at all times especially during emergency or critical situations. Keen scrutiny of the physical appearance and behavior of persons is a routine part of a security guard’s work duties.

Movants likewise fault this Court for giving considerable weight to the observations made by the trial judge during the ocular inspection, arguing that the timing of said ocular inspection did not coincide with the precise hour in the morning when the shooting incident happened. Because the shooting took place between 8:30 to 9:00 when the glare of the morning sun directly hits the guard post of Alejo, the latter supposedly cannot be said to have had such clear vantage point as found by the trial judge when he positioned himself at the said guard post at a later time, which is already past 10:00 in the morning.

We are not persuaded.

Movants are raising the issue for the first time before this Court and long after trial and rendition of judgment. We have perused the transcript of stenographic notes taken during the ocular inspection conducted by the trial court on September 26, 1996, and found no objection or comment made by the defense counsel regarding the timing of the inspection and its relevance to the evaluation of Alejo’s testimony. Neither did the accused complain of any irregularity in the conduct of the said ocular inspection before the appellate court. If indeed, the accused found the timing of the ocular inspection crucial to their defense that Alejo was not really an eyewitness as he could not have clearly seen the faces of all the accused from his guard post, they could have made a proper manifestation or objection before the trial judge. They could have even staged a reenactment to demonstrate to the trial court the alleged glare of the morning sun at the time of the commission of the crime, which could have affected Alejo’s perception of the incident. But they did not. It is now too late in the day for the accused to assail as irregular the ocular inspection which was done with the conformity and in the presence of their counsel.

It is an admitted fact that Alejo and his family were sheltered and given financial support by the victim’s family, presumably out of gratitude and sympathy considering that Alejo lost his job after the incident. Such benevolence of the Abadilla family, however, is not sufficient basis for the conclusion that Alejo would falsely accuse movants as the perpetrators of the crime. As we have stressed, Alejo did not waver in his identification of the accused despite a grueling cross-examination by the defense lawyers. Both the trial and appellate courts found Alejo’s testimony as credible, categorical and straightforward. After a painstaking review of the records, we find no cogent reason to deviate from their findings on the issue of credibility of the prosecution’s lone eyewitness.

As to the affidavit of Orencio G. Jurado, Jr. submitted by Fortuna, the said affiant claimed that he had a heated argument with Inspector Roger Castillo during one of the hearings before the trial court because Inspector Castillo was urging him (Jurado) "to confirm that those arrested by the joint team of CID and

PARAK-DILG were exactly the same people/suspects described by the guards to which [he] firmly declined". Jurado alleged that he was surprised to see the faces of the suspects flashed on TV several days after Herbas and Alejo gave their statements at Camp Karingal because they did not fit the description given by witnesses Herbas and Alejo. Jurado was also allegedly prevented earlier by an unidentified policeman -- as per instruction of then DILG Secretary Robert Barbers -- from interviewing the suspects arrested by the operatives of the CID and PARAK-DILG.9

Evidently, Fortuna seeks the introduction of additional evidence to support the defense argument that there was no positive identification of Abadilla’s killers. To justify a new trial or setting aside of the judgment of conviction on the basis of such evidence, it must be shown that the evidence was "newly discovered" pursuant to Section 2,10 Rule 121 of the Revised Rules of Criminal Procedure, as amended.1avvphi1

Evidence, to be considered newly discovered, must be one that could not, by the exercise of due diligence, have been discovered before the trial in the court below.11 Movant failed to show that the defense exerted efforts during the trial to secure testimonies from police officers like Jurado, or other persons involved in the investigation, who questioned or objected to the apprehension of the accused in this case. Hence, the belatedly executed affidavit of Jurado does not qualify as newly discovered evidence that will justify re-opening of the trial and/or vacating the judgment. In any case, we have ruled that whatever flaw that may have initially attended the out-of-court identification of the accused, the same was cured when all the accused-appellants were positively identified by the prosecution eyewitness during the trial.

Finally, we must make it clear that Justice Jose Catral Mendoza, who, as then presiding judge at the trial court, heard the prosecution and defense witnesses, never took part in the deliberations and voting by the Court in this case. The absence of notation in the ponencia that Justice Mendoza had "no part" in the deliberations and voting in this case was purely an oversight and inadvertent omission. The Clerk of Court, Atty. Enriqueta Esguerra-Vidal, had already rectified such error in the Revised Page 75 of our Decision dated September 7, 2010.

IN VIEW OF THE FOREGOING, the motions for reconsideration filed by Lenido Lumanog and Augusto Santos, Rameses de Jesus and Cesar Fortuna are hereby DENIED WITH FINALITY.

Let entry of judgment be made in due course.

SO ORDERED.

Footnotes

1 Rollo (G.R. No. 182555), pp. 870-871.2 Id. at 979-980.3 Id. at 937.4 Id. at 1023.5 People v. Larrañaga, G.R. Nos. 138874-75, July 21, 2005, 463 SCRA 652, 659, citing Ortigas and Company Limited Partnership v. Velasco, G.R. Nos. 109645 and 112564, March 4, 1996, 254 SCRA 234.6 Folder of Exhibits, pp. 26-27.

7 Resayo v. People, G.R. No. 154502, April 27, 2007, 522 SCRA 391, 402-403, citing People v. Quillosa, 382 Phil. 638, 647 (2000), People v. Bermudez, G.R. No. 129033, June 25, 1999, 309 SCRA 124, 136, People v. Tanilon, 354 Phil. 1015, 1026 (1998).8 Vidar v. People, G.R. No. 177361, February 1, 2010, 611 SCRA 216, 228, citing People v. Foncardas, 466 Phil. 992, 1006 (2004).9 Rollo (G.R. No. 182555), p. 1035.10 SEC. 2. Grounds for a new trial. -- The court shall grant a new trial on any of the following grounds:(a) That errors of law or irregularities prejudicial to the substantial rights of the accused have been committed during the trial;(b) That new and material evidence has been discovered which the accused could not with reasonable diligence have discovered and produced at the trial and which if introduced and admitted would probably change the judgment.11 United States v. Palanca, 5 Phil. 269, 271 (1905).

G.R. No. 191064 October 20, 2010

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs.ROLANDO ARANETA y ABELLA @ BOTONG and MARILOU SANTOS y TANTAY @ MALOU, Accused-Appellants.

D E C I S I O N

MENDOZA, J.:

This is an appeal from the August 29, 2008 Decision1 of the Court of Appeals (CA), in CA-G.R. CR-H.C. No. 02308, which affirmed the March 12, 2004 Decision2 of the Regional Trial Court, Branch 151, Pasig City (RTC), finding the accused guilty beyond reasonable doubt for violating Section 5 and Section 11 of Article II of Republic Act No. 9165, otherwise known as the "Comprehensive Drugs Act of 2002."

Criminal informations were filed in the RTC against Rolando Araneta y Abella a.k.a. "Botong" for Violation of Section 8 and Section 16 of R.A. No. 6425 (Dangerous Drugs Act of 1972), as amended, in addition to the Information filed against him and co-accused Marilou Santos y Tantay a.k.a. "Malou" for Violation of Section 15, Article III in relation to Section 21, Article IV of R.A. 6425, as amended. In view of the enactment of R.A. No. 9165 (Comprehensive Drugs Act of 2002), the original informations were amended accordingly. The said Informations read:

Criminal Case No. 11491-D

People vs. Araneta & Santos

(For Violation of Sec. 5 in relation to Sec. 26, Art. II, R.A. 9165)

On or about July 5, 2002 in Pasig City, and within the jurisdiction of this Honorable Court, the above accused, conspiring and confederating together and both of them mutually helping and aiding one another, not being lawfully authorized to sell, dispense, transport or distribute any dangerous drug, did then and there willfully, unlawfully and feloniously sell, deliver and give away to PO2 Danilo S. Damasco, a police poseur buyer, one (1) heat-sealed transparent plastic sachet containing white crystalline substance weighing of (sic) eight (8) centigrams (0.08 gram), which was found positive to the test for metamphetamine hydrochloride, a dangerous drug, in violation of said law.

Contrary to Law.

Criminal Case No. 11492-DPeople vs. Araneta (For Violation of Sec. 11, Art. II, R.A. 9165)

On or about July 5, 2002, in Pasig City, and within the jurisdiction of this Honorable Court, the accused, not being lawfully authorized to use or possess any dangerous drug, did then and there willfully, unlawfully and feloniously have in his possession and under his custody and control one (1) heat-sealed transparent plastic sachet containing 1.22 grams of dried marijuana fruiting tops, which was found

positive to the test for marijuana, a dangerous drug, and eight (8) heat-sealed transparent plastic sachets containing white crystalline substance with the following recorded net weight, to wit:

1) Exh. B1 RAA/070502 – 0.07 gram;

2) Exh. B2 RAA/070502 – 0.10 gram;

3) Exh. B3 RAA/070502 – 0.08 gram;

4) Exh. B4 RAA/070502 – 0.07 gram;

5) Exh. B5 RAA/070502 – 0.08 gram;

6) Exh. B6 RAA/070502 – 0.04 gram;

7) Exh. B7 RAA/070502 – 0.06 gram;

8) Exh. B8 RAA/070502 – 0.09 gram

or having a total weight of 0.59 gram, which were found positive to the test for methamphetamine hydrochloride, a dangerous drug, in violation of the said law.

Contrary to Law.

The prosecution’s evidence was summarized in the CA decision as follows:

On July 5, 2002, between 3:00 and 3:30 o’clock in the morning, a confidential informant arrived at the Station Drug Enforcement Unit (SDEU) of the Pasig City Police Station to report to Officer-In-Charge SP04 Numeriano de Lara the alleged peddling of illegal drugs of live-in couple Botong and Malou, later identified as appellants Rolando Araneta y Abella and Marilou Santos y Tantay, at Barangay Putol, Rosario, Pasig City. SPO4 de Lara immediately formed a team composed of SPO2 Dante Zigapan who acted as the team leader, PO2 Danilo Damasco, PO1 Orig, and PO1 Bede Montefalcon, to confirm the veracity of the informant’s report and conduct a buy-bust operation. Before dispatching the team, SPO4 de Lara briefed them as to the alleged illegal activities of the couple and gave their description.

SPO2 Zigapan designated PO2 Damasco as the poseur-buyer giving him a marked P100 bill to be used in the entrapment. The team proceeded to the target area on board two vehicles. SPO2 Zigapan, Montefalcon and the informant were in one vehicle while PO2 Damasco and PO1 Orig were together in the other vehicle.

The team arrived at the target place around 4:10 in the morning. They positioned themselves some 20-30 meters from the alley where appellants were allegedly staying. SPO2 Zigapan gave instructions to the informant to locate the appellants. After several minutes, the informant came back and confirmed the presence of appellants at ROTC Street, Putol, Bgy. Rosario, Pasig City. Thereafter, the team proceeded to the said location.

PO2 Damasco and the informant went near the appellants who were standing just outside their house. The informant and appellants exchanged greetings. After a short conversation, Botong went inside their

house. The informant introduced PO2 Damasco to Malou by saying, "I-score itong kaibigan ko. Baka meron ka dyan." Malou then asked PO2 Damasco, "I-score ka na ba." After Malou asked PO2 Damasco, "Magkano," the latter immediately gave her the marked P100 bill.

Malou called Botong and when the latter came out, Malou handed to him the marked money. Botong then gave Malou a plastic sachet which she handed to PO2 Damasco.

After examining the plastic sachet, PO2 Damasco immediately gave the pre-arranged signal to the other members of the team who thereafter rushed to the scene. PO2 Damasco arrested Malou while SPO2 Zigapan arrested Botong.

SPO2 Zigapan recovered from Botong the marked P100 bill and after frisking him, the police officer found in Botong’s pocket one plastic sachet of what looked like marijuana and eight plastic sachets containing white crystalline substance. PO2 Damasco immediately placed "RAA" and the date July 5, 2002 on the plastic sachet he brought from Malou and the plastic sachets confiscated by SPO2 Zigapan from Botong.

At the police station, PO2 Damasco prepared the written request for a laboratory examination of the confiscated plastic sachets. Together with the request, the plastic sachets were brought by PO1 Orig to the crime laboratory. The laboratory tests gave a positive result of the presence of methampethamine hydrochloride or what is locally known as shabu on the contents of nine (9) sachets and marijuana on one (1) sachet.

The evidence for the accused was summarized by the CA as follows:

Between 3:30 to 4:30 o’clock in the morning of July 5, 2006, accused Rolando Araneta together with his live-in partner and co-accused Marilou Santos were sleeping on the ground floor of their rented apartment, when they were suddenly awakened by a loud noise coming from the upstairs. Rolando immediately stood up and tried to go up the stairs. That was when he met a man who introduced himself as a policeman. The man likewise pointed a gun to him and told him not to move. He was then instructed to sit down, to which he acceded. Thereafter, the man went near the door of his house and opened the same. Suddenly, four (4) other policemen went inside. One of the policemen went inside the comfort room and looked for somebody. Later, he heard the said policeman utter, "Nobody is here." One of the policemen then approached Rolando and asked him the whereabouts of a certain Teng. Rolando answered that he did not know Teng and that there was no other person inside the house except for him and his wife Marilou.

The police operatives searched his house. They however found nothing illegal inside his house. After the search, the police operatives invited Rolando and Marilou to come with them to the precinct to answer some questions. Thereat, the police operatives informed them that they are being charged for their involvement in illegal drug activities, which they vehemently denied. PO2 Damasco, however, told them that if they wanted to be released, Rolando and Marilou must pay P20,000.00 each. When Rolando declined to give said amount, the police operatives filed the instant cases against them. (TSN, June 23, 2003, pp. 2-8)

In the early morning of July 5, 2003, accused-appellant Marilou Santos and her live-in partner Rolando were sleeping when they were awakened by a noise coming from the second floor of their house. Rolando tried to go upstairs to find out what happened, but he met a man who instantly poked a gun at

him. Marilou tried to stand up but the policeman told her, "Stay there, don’t move." Thereafter the police shoved them near the chair. He also asked Rolando the whereabouts of Teng but the former answered that nobody by the name of Teng lived there. While still poking the gun on them, the policeman opened the door of their house. Five (5) policemen then entered and conducted a search.

After the search, the policemen brought them to the police station. Thereat, PO2 Damasco asked them several questions. Moments later, the policeman got something from the drawer and told them that those articles belong to them. Marilou denied that the said articles belong to them since the policemen did not recover anything from them during the search. Despite her denial, they were still charged with Violations of Sections 15, 16 and 8 of Republic Act 9165. After a while, PO2 Damasco demanded P20,000.00 from them in exchange for their release. As they were innocent, Marilou refused to give said amount, prompting the police operatives to formally charge them. (TSN, July 23, 2003, p. 3)

In the early morning of July 5, 2002, Marian Rodriguez was outside the alley in ROTC, Rosario, Pasig City when she saw both accused going out of the alley accompanied by five (5) men. The accused and the five (5) men passed in front of Marian. She hesitated to follow the group. Since then Marian never saw the accused again. (TSN, September 10, 2003, pp. 3-4).

In its March 12, 2004 Decision, the RTC found the accused guilty beyond reasonable doubt and sentenced them accordingly, as follows:

WHEREFORE, the Court renders judgment, as follows:

1) In Criminal Case No. 11491-D, the Court finds accused Rolando Araneta y Abella @ Botong and accused Marilou Santos y Tantay A Malou GUILTY beyond reasonable doubt of violation of Sec. 5 in relation to Sec. 26, Art. II of R.A. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, and imposes upon them the penalty of LIFE IMPRISONMENT and to pay a fine P500, 000.00 each; and

2) In Criminal Case No. 11492-D (which absorbed Criminal Case No. 11490-D), the Court finds accused Rolando Araneta y Abella @Botong GUILTY beyond reasonable doubt of violation of Sec. 11, Art. II of R.A. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, and imposes upon him the penalty of imprisonment of from Twelve (12) years and One (1) day to Twenty (20) years and to pay a fine of P300, 000.00. Considering that the accused is a detention prisoner, he shall be credited with the period of his detention during his preventive imprisonment.

x x x x x x x x x

SO ORDERED.

The RTC ruled that all the elements for the prosecution of the illegal sale of dangerous drugs were present during the buy-bust operation conducted by the police officers. These were: 1) the identity of the buyer and the seller; 2) the object of the sale and the consideration; and 3) the delivery of the thing sold and payment therefor.

Furthermore, the RTC held that the defense of denial, frame-up, forcible entry, and extortion could not prevail over the positive identification by the prosecution witnesses. It noted that accused Rolando Araneta was not candid enough to inform the court that no less than eight (8) criminal cases were

previously filed against him in different courts for violation of the Dangerous Drugs Law. Nevertheless, out of eight (8) criminal cases filed against him, he admitted that one resulted in a conviction and two other cases were dismissed. The other cases were then still pending trial.

Aggrieved, the accused appealed to the CA arguing that: 1) the RTC erred in not finding that they were illegally arrested and, as such, the sachets of shabu allegedly recovered from them were inadmissible in evidence; and 2) the RTC erred in finding them guilty beyond reasonable doubt of the crime charged because the testimonies of the prosecution witnesses were replete with inconsistencies and contradictions.

On August 29, 2008, the CA rendered the subject decision affirming the decision of the RTC.

In arriving at said determination, the CA applied the "objective test" in buy-bust operations laid down in the case of People v. Doria, 301 SCRA 668, 698-699.3 The CA ruled that the prosecution evidence met the standard for the "objective test" through the testimony of its witness, PO2 Danilo Damasco, who acted as poseur-buyer and who related how the informant introduced him to the accused; how the transaction was consummated through the exchange of marked money and the sachet of shabu; and how the accused was arrested by the entrapment team.

The CA noted that the accused were arrested in flagrante delicto and that other contraband materials were recovered from them during the ensuing search. It concluded that the corpus delicti was duly established.

Finally, the CA stated that the inconsistencies in the testimonies of the police officers were minor or inconsequential. The accused failed to adduce evidence to overthrow the presumption of regularity in the performance of duty in favor of the police officers. The accused likewise failed to show proof that the police officers did not properly perform their jobs or had ill motives against them. Moreover, their defense of denial and frame-up for extortion purposes was self-serving, negative evidence that was not entitled to be given greater weight than the declaration of credible witnesses who testified on affirmative matters.

In due time, the accused filed a motion for reconsideration stressing the inadmissibility of evidence due to their illegal arrest, and the inconsistency in the testimonies of prosecution witnesses. They also pointed out that the apprehending officers failed to establish that the corpus delicti (sachets of shabu or marijuana) were the very same ones sold by and seized from them. Additionally, they claimed that the apprehending team, who had initial custody over the confiscated drug items, failed to make an inventory and to photograph the same in their presence.

On August 24, 2009, the CA issued a resolution4 denying their motion for reconsideration. The CA ruled, among others, that the issues on the corpus delicti and the alleged failure of the apprehending team to make an inventory and to photograph the shabu and marijuana in the presence of the accused were new issues not raised in their appeal brief.

In their recourse to this Court, the accused presented only one

ISSUE

WHETHER OR NOT THE ACCUSED-APPELLANTS ARE GUILTY BEYOND REASONABLE DOUBT FOR VIOLATING SECTIONS 5 AND 11 OF ARTICLE II OF R.A. No. 9165, OTHERWISE KNOWN AS THE "COMPREHENSIVE DRUGS ACT OF 2002.

The accused argue that the evidence adduced by the prosecution was not able to establish without a doubt, that the dangerous drugs presented in court were the very same ones allegedly sold by them. They insist that the police officers failed to strictly abide by the requirements of the law as regards the proper custody of dangerous drugs seized in the course of the alleged buy-bust operation.

The prosecution stands firm by its position that the arrest of the accused and seizure of the shabu and marijuana were lawful and that the testimonies of the prosecution witnesses were truthful. In the absence of any credible evidence to the contrary, the police officers are presumed to have regularly performed their official duty. More importantly, all the elements necessary for the prosecution of the illegal sale of drugs are present, to wit: 1) the identity of the buyer and the seller, the object and consideration; and 2) the delivery of the thing sold and payment therefor.

The prosecution asserts that the accused cannot raise for the first time on appeal the issue on the alleged failure of the law enforcers to comply strictly with Section 21 of Republic Act No. 9165. At any rate, the prosecution believes that it has shown that the chain of custody of the seized items was not broken.

THE COURT’S RULING:

After due consideration, the Court finds the evidence on record sufficient enough to sustain the verdict of conviction. It is morally convinced that the accused are guilty beyond reasonable doubt of the offense charged against them. The rule is that factual findings of the trial court, its calibration of the testimonies of the witnesses and its assessment of their probative weight are given high respect if not conclusive effect, unless the trial court ignored, misconstrued, misunderstood or misinterpreted cogent facts and circumstances of substance, which, if considered, will alter the outcome of the case.5 In this case, the CA found no such inculpatory facts and circumstances and this Court has not stumbled upon any either.

Doubtless, the prosecution was able to establish all the necessary elements required in the prosecution for illegal sale of dangerous drugs, namely: 1) the identity of the buyer and seller; 2) the identity of the object of the sale and the consideration; and 3) the delivery of the thing sold upon payment.

PO2 Danilo Damasco, (PO2 Damasco) the poseur-buyer, clearly and convincingly narrated in detail the entrapment operation they had conducted that led to the arrest of the accused and the seizure of the dangerous drugs. He related on the witness stand that upon receiving information from a confidential informant about the illegal sale of dangerous drugs by the accused, they immediately formed an entrapment team to conduct a buy-bust operation. Upon reaching the area in the early morning of July 5, 2002, he and the confidential informant approached the accused. After a brief introduction and short conversation, accused Botong went inside their house while accused Malou received the marked money from the poseur-buyer. Malou then called Botong who thereafter came out of the house. Malou gave the marked money to Botong who, in turn, gave Malou a plastic sachet containing a white crystalline substance. The plastic sachet was then handed over to PO2 Damasco who examined it and immediately gave the pre-arranged signal to arrest the accused. During the arrest, the marked money was recovered from Rolando and so were several other plastic sachets containing white crystalline substances together

with a plastic sachet containing marijuana. Subsequently, the accused were brought to the police station and the seized items were later brought to the Police Crime Laboratory Office for examination.

The testimony of PO2 Damasco was corroborated by SPO2 Zipagan, the entrapment team leader, and SPO4 Numeriano De Lara, the entrapment team organizer.

Contrary to the posture of the accused, the testimony of PO2 Damasco was clear, consistent and convincing. As correctly assessed by the CA, his testimony passed the "objective test" in buy-bust operations.

We therefore stress that the "objective" test in buy-bust operations demands that the details of the purported transaction must be clearly and adequately shown. This must start from the initial contact between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of the sale. The manner by which the initial contact was made, whether or not through an informant, the offer to purchase the drug, the payment of the "buy-bust" money, and the delivery of the illegal drug, whether to the informant alone or the police officer, must be the subject of strict scrutiny by courts to insure that law-abiding citizens are not unlawfully induced to commit an offense. Criminals must be caught but not at all cost. At the same time, however, examining the conduct of the police should not disable courts into ignoring the accused’s predisposition to commit the crime. If there is overwhelming evidence of habitual delinquency, recidivism or plain criminal proclivity, then this must also be considered. Courts should look at all factors to determine the predisposition of an accused to commit an offense in so far as they are relevant to determine the validity of the defense of inducement.6 [Emphasis supplied]

The Court looked into the accused’s defense of denial and accusations of frame-up, planting of evidence, forcible entry and extortion by the police officers but found them inherently weak. Aside from their bare allegations, the accused had nothing more to show that the apprehending police officers did not properly perform their duties or that they had ill motives against them. They failed to substantiate their argument that they were framed-up for extortion purposes.

Absent any convincing countervailing evidence, the presumption is that the members of the buy-bust team performed their duties in a regular manner. It was certainly a job well done. Hence, the Court gives full faith and credit to the testimonies of the prosecution witnesses.

The Court also holds that the seized items were admissible. A search warrant or warrant of arrest was not needed because it was a buy-bust operation and the accused were caught in flagrante delicto in possession of, and selling, dangerous drugs to the poseur-buyer. It was definitely legal for the buy-bust team to arrest, and search, them on the spot because a buy-bust operation is a justifiable mode of apprehending drug pushers. A buy-bust operation is a form of entrapment whereby ways and means are resorted to for the purpose of trapping and capturing the lawbreakers in the execution of their criminal plan. In this jurisdiction, the operation is legal and has been proven to be an effective method of apprehending drug peddlers, provided due regard to constitutional and legal safeguards is undertaken.7

In People v. Villamin, involving an accused arrested after he sold drugs during a buy-bust operation, the Court ruled that it was a circumstance where a warrantless arrest is justified under Rule 113, Sec. 5(a) of the Rules of Court. The same ruling applies to the instant case. When carried out with due regard for constitutional and legal safeguards, it is a judicially sanctioned method of apprehending those involved in illegal drug activities. It is a valid form of entrapment, as the idea to commit a crime comes not from

the police officers but from the accused himself. The accused is caught in the act and must be apprehended on the spot. From the very nature of a buy-bust operation, the absence of a warrant does not make the arrest illegal.

The illegal drugs seized were not the "fruit of the poisonous tree" as the defense would like this Court to believe. The seizure made by the buy-bust team falls under a search incidental to a lawful arrest under Rule 126, Sec. 13 of the Rules of Court, which pertinently provides:

A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant.

Since the buy-bust operation was established as legitimate, it follows that the search was also valid, and a warrant was likewise not needed to conduct it.81avvphi1

It should also be noted that after the RTC rendered a guilty verdict, the accused filed a motion for reconsideration based on two (2) grounds, to wit: 1) inadmissibility of the seized items; and 2) credibility of the prosecution witnesses. In the CA, they reiterated said grounds. After an unfavorable decision and ruling, the accused added two (2) new arguments in their motion for reconsideration, to wit: 1) the apprehending officers failed to establish that the corpus delicti (sachets of shabu or marijuana) were the very same ones sold by and seized from them; and 2) the apprehending team who had initial custody over the confiscated drug items failed to make an inventory and to photograph the same in their presence.

The Court totally agrees with the ruling of the CA that the issues on the corpus delicti and the compliance with Section 21 of RA No. 9165 were issues that were not raised by the accused in their appellants’ brief, and were only presented in their motion for reconsideration from the decision of the CA.

Hence, the Court cannot act, much less, rule on said new points. To do so would violate basic rules on fair play and due process. Thus:

We point out the defense’s failure to contest the admissibility of the seized items as evidence during trial as this was the initial point in objecting to illegally seized evidence. At the trial, the seized shabu was duly marked, made the subject of examination and cross-examination, and eventually offered as evidence, yet at no instance did the appellant manifest or even hint that there were lapses in the safekeeping of seized items that affected their admissibility, integrity and evidentiary value. In People v. Hernandez, we held that objection to the admissibility of evidence cannot be raised for the first time on appeal; when a party desires the court to reject the evidence offered, he must so state in the form of objection. Without such objection, he cannot raise the question for the first time on appeal.9

WHEREFORE, the August 29, 2008 Decision of the Court of Appeals, in CA-G.R. CR-H.C. No. 02308, is AFFIRMED.

SO ORDERED.

Footnotes

* Designated as an additional member in lieu of Justice Roberto A. Abad, per Special Order No. 905 dated October 5, 2010.1 CA rollo, pp. 2-13. Penned by Associate Justice Lucas P. Bersamin (now a member of this Court) with Associate Justice Estella M. Perlas-Bernabe and Associate Justice Ramon M. Bato, Jr., concurring.2 Id. at 22-28.3 "We therefore stress that the "objective" test in buy bust operations demands that the details of the purported transaction must be clearly and adequately shown. This must start from the initial contact between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of the sale. The manner by which the initial contact was made, whether or not through an informant, the offer to purchase the drug, the payment of the "buy-bust" money, and the delivery of the illegal drug, whether to the informant alone or the police officer, must be the subject of strict scrutiny by courts to insure that law-abiding citizens are not unlawfully induced to commit an offense. Criminals must be caught but not at all cost. At the same time, however, examining the conduct of the police should not disable courts into ignoring the accused’s predisposition to commit the crime. If there is overwhelming evidence of habitual delinquency, recidivism or plain criminal proclivity, then this must also be considered. Courts should look at all factors to determine the predisposition of an accused to commit an offense in so far as they are relevant to determine the validity of the defense of inducement."4 CA rollo, pp. 176-177.5 People v. Darlene Quigod Miranda, G.R. No. 186419, April 23, 2010.6 People v. Joey Tion y Cabaddu, G.R. No. 172092, December 16, 2009, 608 SCRA 299; citing People v. Doria, 361 Phil. 595 (1999).7 Supra note 5.8 People v. Elizabeth Marcelino y Reyes, G.R. No. 189278, July 26, 2010.9 People of the Philippines v. Sitti Domado, G.R. No. 172971, June 16, 2010.

G.R. No. 178039 January 19, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee vs.ERNESTO UYBOCO y RAMOS, Defendant-Appellant.

D E C I S I O N

PEREZ, J.:

Subject of this appeal is the 27 September 2006 Decision1 promulgated by the Court of Appeals, affirming the Regional Trial Court’s (RTC) Judgment2 in Criminal Case Nos. 93-130980, 93-132606, and 93-132607, finding Ernesto Uyboco y Ramos (appellant) guilty of three (3) counts of kidnapping for ransom.

Appellant, along with now deceased Colonel Wilfredo Macias (Macias) and several John Does were charged in three separate Informations, which read as follow:

In Criminal Case No. 93-130980:

That in the morning of December 20, 1993 and for sometime subsequent thereto in Manila and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, did then and there willfully, unlawfully and feloniously kidnap, carry away and detain the minor, JESON KEVIN DICHAVES, five (5) years old, against his will and consent, thus depriving him of his liberty, for the purpose of extorting ransom for his release, which after payment thereof in the amount of P1,320,000.00 in cash and P175,000.00 worth of assorted jewelry, including a Colt .45 Caliber Pistol with SN 14836 or a total of ONE MILLION FIVE HUNDRED THOUSAND PESOS (P1,500,000.00) was divided by said accused between and/or among themselves to the damage and prejudice of the aforementioned victim/or his parents.3

In Criminal Case No. 93-132606:

That in the morning of December 20, 1993 and for sometime subsequent thereto in Manila and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, did then and there willfully, unlawfully and feloniously kidnap, carry away and detain the minor, JESON KIRBY DICHAVES, two (2) years old, against his will and consent, thus depriving him of his liberty, for the purpose of extorting ransom for his release, which after payment thereof in the amount of P1,320,000.00 in cash and P175,000.00 worth of assorted jewelry, including a Colt .45 Caliber Pistol with SN 14836 or a total of ONE MILLION FIVE HUNDRED THOUSAND PESOS (P1,500,000.00) was divided by said accused between and/or among themselves to the damage and prejudice of the aforementioned victim/or his parents.4

In Criminal Case No. 93-132607:

That in the morning of December 20, 1993 and for sometime subsequent thereto in Manila and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, did then and there willfully, unlawfully and feloniously kidnap, carry away and detain NIMFA CELIZ, against her will and consent, thus depriving her of liberty, for the purpose of

extorting ransom for her release, which after payment thereof in the amount of P1,320,000.00 in cash and P175,000.00 worth of assorted jewelry, including a Colt .45 Caliber Pistol with SN 14836 or a total of ONE MILLION FIVE HUNDRED THOUSAND PESOS (P1,500,000.00) was divided by said accused between and/or among themselves to the damage and prejudice of the aforementioned victim.5

The arraignment was held in abeyance twice.6 Finally, the arraignment was set on 22 October 1996. Appellant and Macias, with the assistance of their counsels, however refused to enter a plea. This prompted the RTC to enter a plea of "Not Guilty" for each of them. Trial on the merits ensued.

The prosecution presented the following witnesses: Nimfa Celiz (Nimfa), Jepson Dichaves (Jepson), Police Superintendent Gilbert Cruz (P/Supt. Cruz), Police Superintendent Mario Chan (P/Supt. Chan), Police Inspector Cesar Escandor (P/Insp. Escandor) and Carolina Alejo, whose version of facts are summarized as follows:

At around 10:30 a.m. on 20 December 1993, Nimfa and her wards, siblings Jeson Kevin and Jeson Kirby Dichaves were riding in the Isuzu car of the Dichaves family, together with Yusan Dichaves (Yusan). Driver Pepito Acon (Acon) dropped off Yusan at Metrobank in Claro M. Recto Avenue, Manila. While waiting for Yusan, Acon drove along Bilibid Viejo, Sampaloc. When the vehicle passed by in front of San Sebastian Church, a stainless jeep with two men and one woman described as a tomboy on board, suddenly blocked its way. One of the men, who was in police uniform accosted Acon and accused him of hitting the son of a Presidential Security Group (PSG) General apparently with a stone when the vehicle ran over it. Acon denied the charges but he was transferred to the stainless jeep while the man in police uniform drove the Isuzu car. The tomboy sat next to Nimfa who then had Jeson Kirby sit on her lap while Jeson Kevin was sitting on the tomboy’s lap. They were brought to a house in Merville Subdivision, Parañaque.7

While still in garage of the house, Nimfa was able to sneak out of the car and place a call to the secretary of her employer to inform the latter that they were in Merville Subdivision. She came back to the car undetected and after a while, she and her wards were asked to alight from the car and they were locked inside the comfort room.8

Jepson was at his office at 10:00 a.m. of 20 December 1993. He received a call from his wife asking him if Nimfa or Acon called up, as she had been waiting for them at Metrobank where she was dropped off earlier. After 15 minutes, Yusan called again and was already hysterical because she could not find the car when she roamed around the area. Jepson immediately called up his brother Jaime and some police officers to inform them that his sons were missing. When Jepson arrived at Metrobank at around 11:30 a.m., he received a call from his secretary informing him that Nimfa called about their whereabouts. When Jepson got back to his office, his secretary informed him that an unidentified man called to inform them that he has custody of the children and demanded P26 Million.9

Meanwhile in Merville Subdivision, the man in police uniform introduced himself to Nimfa as Sarge. He asked Nimfa for information regarding her name and her employer’s telephone number. She feigned ignorance of those information. She even claimed that she was merely a new employee.10 Sarge informed Nimfa that they were in Fairview and that she was asked if she knew how to go home. Nimfa chose to stay with her wards. When the phone rang, Sarge went out of the house and Nimfa again sneaked a phone call to her employer informing them that they were being held up in Merville Subdivision.11

Jepson, through Jaime’s help, went to the house of then Vice-President Joseph Estrada (Vice-President Estrada) at 8:00 p.m. Thereat, he met General Jewel Canson (Gen. Canson), General Panfilo Lacson (Gen. Lacson) and Major Ray Aquino (Major Aquino). Vice-President Estrada ordered the police generals to rescue Jepson’s sons and arrest the kidnappers.12

At 6:00 p.m., the kidnappers called Jepson and reduced the ransom to P10 Million.13 That night, Nimfa was able to speak to Jepson when two men handed the telephone to her. She recognized one of them as appellant, because she had seen the latter in her employer’s office sometime in the first week of December 1993.14

On the following noon of 21 December 1993, the kidnappers called up Jepson numerous times to negotiate for the ransom. In one of those calls, Jepson was able to recognize the voice of appellant because he had several business transactions with the latter and they have talked for at least a hundred times during a span of two to four years.15

On 22 December 1993, the parties finally agreed to a ransom of P1.5 Million. Jepson offered P1.3 Million in cash and the balance to be paid in kind, such as jewelry and a pistol.16 Appellant asked Jepson to bring the ransom alone at Pancake House in Magallanes Commercial Center. Jepson called up Gen. Canson and Gen. Lacson to inform them of the pay-off.17

At around 1:00 p.m. of even date, Nimfa was able to talk to Jepson and the latter informed her that they would be released that afternoon.18 At 3:00 p.m., Jepson drove his white Toyota Corolla car and proceeded to Pancake House in Magallanes Commercial Center. He placed the money inside a gray bag and put it on the backseat. Jepson received a call from appellant at 4:00 p.m. who ordered him to put the bag in the trunk, leave the trunk unlocked, and walk away for ten (10) minutes without turning back. Later, appellant checked on his trunk and the bag was already gone. Appellant then apprised him that his sons and helper were already at the Shell Gasoline Station along South Luzon Expressway. He immediately went to the place and found his sons and helper seated at the corner of the gas station.19

P/Insp. Escandor was assigned to proceed to Magallanes Commercial Center, together with two other police officers. They reached the place at 3:30 p.m. and positioned themselves in front of the Maranao Arcade located at Magallanes Commercial Center. He brought a camera to cover the supposed pay-off. He took a total of 24 shots.20 He identified Macias together with appellant in Magallanes Commercial Center and the latter as the one who took the ransom.21

P/Supt. Chan was one of the team leaders dispatched also at Magallanes Commercial Center in Makati on 22 December 1993 to take a video coverage on the supposed pay-off. He witnessed the pay-off and identified appellant as the one who took the bag containing the ransom money from the car trunk of Jepson.22

P/Supt. Cruz is assigned to the now defunct Presidential Anti-Crime Commission Task Force Habagat and one of the team leaders of Special Project Task Force organized on 22 December 1993 with the primary task of apprehending the kidnappers of Dichaves’ children and helper. His group was assigned at Fort Bonifacio to await instructions from the overall Field Command Officer Gen. Lacson. They had been waiting from 4:00 p.m. until 6:00 p.m. when they received information that the kidnap victims were released unharmed. They were further asked to maintain their position in Fort Bonifacio. At around 7:45 p.m., they heard on their radio that the suspect’s vehicle, a red Nissan Sentra was heading in their direction. A few minutes later, they saw the red car and tailed it until it reached Dasmariñas Village in

Makati. They continuously followed the car inside the village. When said car slowed down, they blocked it and immediately approached the vehicle.23

They introduced themselves as police officers and accosted the suspect, who turned out to be appellant. Appellant suddenly pulled a .38 caliber revolver and a scuffle took place. They managed to subdue appellant and handcuffed him. Appellant was requested to open the compartment and a gray bag was found inside. P/Supt. Cruz saw money, jewelry and a gun inside the bag. Appellant was then brought to Camp Crame for questioning.24

At 8:00 p.m., Jepson received a call from Gen. Lacson asking him to go to Camp Crame. He and Nimfa went to Camp Crame where he saw appellant alone in the office of Gen. Canson. He then saw the bag containing the ransom money, pieces of jewelry and his gun on the table. Photographs were taken and Jepson was asked to identify them.25

A written inventory was prepared on the contents of the bag.26 It was found out that a portion of the ransom money was missing. It was then that appellant revealed that the missing money was in the possession of Macias. Appellant accompanied P/Supt. Cruz and his team to the residence of Macias in Camp Aguinaldo. P/Supt. Cruz waited for Macias until 4:00 a.m. on the following day and placed him under arrest. Macias was asked where the rest of the ransom money was and Macias went inside the house and retrieved a red bag inside a small cabinet. P/Supt. Cruz prepared a receipt of the seized property from Macias. Macias placed his signature on the receipt.27

Carolina Alejo was the owner of the house in Merville Subdivision where the kidnap victims were detained. She stated that she leased the house to appellant. On 23 December 1993, it came to her knowledge that said house was used in the kidnapping. She noticed that the lock of the comfort room was reversed so that it could only be locked from the outside. She considered this unusual because she personally caused the door knob to be installed.28

The defense, on its part, presented appellant, Florinda Sese Barcelona (Ms. Sese), Dr. Jaime Leal (Dr. Leal), and retired Colonel Ramon Navarro (Col. Navarro).

Appellant testified that he came to know Jepson when he was introduced to him by Col. Navarro in 1989 as the importer of police equipment and accessories. Jepson wanted to buy revolving lights, police sirens and paging system. Through Navarro, appellant also met Macias who was then selling his security agency in July 1993. He admitted that Jepson had been lending him money since 1990 and his total borrowings amounted to P8.5 Million in December 1993. Appellant also knew Nimfa since 1990 and had met her five (5) times in the office of Jepson where Nimfa usually served him coffee.29

In December 1993, he rented a house in Merville Subdivision for his mother. He was given the key to the house in 15 December 1993 but he denied going to said place on 20, 21, 22, 23 of December 1993.

At 3:00 p.m. of 20 December 1993, he received a call from Jepson asking for P1 Million, as partial payment of his loan. Jepson informed appellant that his sons were kidnapped and he requested appellant to negotiate with the kidnappers for the release of his children. Out of pity, appellant agreed. He actively participated in the negotiations between 20 to 22 of December 1993, where he successfully negotiated a lower ransom of P1.5 Million.

On 11:30 a.m. of 22 December 1993, Jepson again requested appellant to deliver the ransom money to the kidnappers. Appellant acceded to the request. He asked Macias, who was in his office that day, to accompany him. The kidnappers asked appellant to proceed to the Makati area and wait for further instructions. Appellant called up Jepson who told him that he would deliver the money to appellant once instructions were given by the kidnappers. The kidnappers finally called and asked appellant to proceed to Shell Gasoline Station-Magallanes. He informed Jepson of this fact and the latter asked appellant to meet him in Magallanes Commercial Center where he would just put the money inside the car trunk and leave it unlocked. Appellant took the money from Jepson’s car and put it inside his car trunk and proceeded to Shell Gasoline station.30 Appellant and Macias did not see the kidnappers and Jepson’s children at the station. He tried calling Jepson but failed to communicate with him. They then decided to go back to the office in Cubao, Quezon City. At 7:00 p.m., he received a call from the kidnappers who were cursing him because they apparently went to the Shell Gasoline Station and noticed that there were many policemen stationed in the area, which prompted them to release the victims. Appellant left his office at around 7:20 p.m. to go home in Dasmariñas Village, Makati. When he was about ten (10) meters away from the gate of his house, a car blocked his path. He saw P/Supt. Cruz, a certain Lt. Rodica and two other men alight from the car and were heavily armed. They pulled him out of the car and hit him with their firearms.31

Ms. Sese was at the office of appellant on 22 December 1993 when she was told by the secretary, who appeared shaken, that a caller was looking for appellant. She saw appellant arrive at the office with Macias.32

Dr. Leal, the medico-legal officer at Philippine National Police (PNP) Crime Laboratory, presented the medico-legal certificate of appellant and testified that the injuries of appellant could have been sustained during the scuffle.33

Col. Navarro introduced appellant to Jepson. He was privy to the loan transactions between appellant and Jepson where the former asked loans from the latter. He even served as guarantor of some of the obligations of appellant. When the checks issued by appellant were dishonored by the bank, Jepson filed a case against Navarro for violation of Batas Pambansa Blg. 22, wherein the latter was eventually acquitted.34

While the criminal cases were undergoing trial, Macias died. Consequently, his criminal liability is totally extinguished under Article 89, paragraph 1 of the Revised Penal Code.35

On 30 August 2002, the RTC rendered judgment finding appellant guilty beyond reasonable doubt of the crime of kidnapping for ransom. The dispositive portion reads:

WHEREFORE, premises considered herein accused Ernesto Ramos Uyboco is hereby found guilty beyond reasonable doubt of the crime of Kidnapping for Ransom penalized by Article 267 of the Revised Penal Code, as amended by R.A. 1084. He is hereby ordered to suffer the prison term of reclusion perpetua for three (3) counts together with the accessory penalties provided by law. He should pay private complainant Jepson Dichaves the amount of P150,000.00 as moral damages.

The above-described .45 Caliber Colt Pistol and 12-gauge Remington shotgun as well as the Nissan Sentra 4-Door Sedan are hereby confiscated in favor of the government.

The Warden of Metro Manila Rehabilitation Center, Camp Ricardo R. Papa, Bicutan, Taguig, Metro Manila is hereby ordered to immediately transfer the said accused to the Bureau of Corrections, National Bilibid Prison, Muntinlupa City. The Jail Director of said bureau is ordered to inform this court in writing soonest as to when the said official took custody of the accused.36

The trial court held that the prosecution had established with the required quantum of evidence that the elements of kidnapping for ransom were present and that appellant was the author of said crime.

Appellant filed a notice of appeal to the Supreme Court. Conformably to People v. Mateo,37 this Court in a Resolution dated 6 September 2004, referred the case to the Court of Appeals for appropriate action and disposition.38

On 27 September 2006, the Court of Appeals affirmed in toto the Decision of the RTC, the dispositive portion of which reads:

WHEREFORE, the August 30, 2002 Decision of the Regional Trial Court, national Capital Judicial Region, Br. 18, Manila, in Criminal Cases Nos. 93-130980, 93-132606, and 93-132607, in convicting Ernesto Uyboco of three (3) counts of Kidnapping for Ransom is hereby AFFIRMED in toto. No costs.39

A motion for reconsideration was filed by appellant but the same was denied in a Resolution dated 22 December 2006. Hence, this appeal.

On 3 September 2007, this Court required the parties to file their respective supplemental briefs. On 25 October 2007, appellant’s counsel filed a withdrawal of appearance. Appellee manifested that it is no longer filing a Supplemental Brief.40 Meanwhile, this Court appointed the Public Attorney’s Office as counsel de oficio for appellant. Appellee also filed a manifestation that it is merely adopting all the arguments in the appellant’s brief submitted before the Court of Appeals.41

Appellant prays for a reversal of his conviction on three (3) counts of kidnapping for ransom based on the following assignment of errors:

I. The trial court erred in convicting the accused-appellant despite the disturbing whispers of doubt replete in the prosecution’s theory.

II. The trial court erred in giving credence to Nimfa Celiz’ testimony notwithstanding the incredibility of her story.

III. The trial court erred in presuming regularity in the performance of official functions over the constitutional presumption of innocence of the accused uyboco.

IV. The trial court erred in admitting the testimony of Jepson dichavez notwithstanding his displayed propensity for untruthfulness.

V. The trial court erred in admitting most of the object evidence presented against the accused-appellant since they were procured in violation of his constitutional rights.

VI. The trial court erred in finding of fact that the Merville property leased by accused-appellant from ms. Carolina alejo was the very same house where nimfa celiz and her wards were allegedly detained.

VII. The trial court erred in holding that accused uyboco as having participated in the abduction of jeson Kevin, jeson Kirby, and nimfa celiz as not a single evidence on record supports the same.

VIII. The trial court erred in not acquitting the accused considering that abduction, an important element of the crime, was never established against him.

IX. The trial court erred in holding the accused guilty of kidnapping for ransom without discussing the participation of accused macias considering that the charge was for conspiracy.42

The ultimate issue in every criminal case is whether appellant’s guilt has been proven beyond reasonable doubt. Guided by the law and jurisprudential precepts, this Court is unerringly led to resolve this issue in the affirmative, as we shall hereinafter discuss.

In order for the accused to be convicted of kidnapping and serious illegal detention under Article 267 of the Revised Penal Code, the prosecution is burdened to prove beyond reasonable doubt all the elements of the crime, namely: (1) the offender is a private individual; (2) he kidnaps or detains another, or in any manner deprives the latter of his liberty; (3) the act of detention or kidnapping must be illegal; and (4) in the commission of the offense any of the following circumstances is present: (a) the kidnapping or detention lasts for more than three days; (b) it is committed by simulating public authority; (c) serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or (d) the person kidnapped and kept in detained is a minor, the duration of his detention is immaterial. Likewise, if the victim is kidnapped and illegally detained for the purpose of extorting ransom, the duration of his detention is immaterial.43

We are in full accord with the findings of the trial court that these elements were proven by the prosecution, thus:

1) Accused Uyboco is a private individual;

2) Accused Uyboco together with the unidentified persons/companions of accused Uyboco, referred to as John Does, forcibly abducted the two sons of private complainant Jepson Dichaves, namely: then five-year-old Jeson Kevin and two-year old Jeson Kirby as well as their maid or "yaya" Nimfa Celiz. Their abduction occurred at about 10:30 in the morning of December 20, 1993. The three victims were on board Jepson’s Isuzu pick-up driven by Jepson’s driver Pepito Acon. The moving pick-up was in front of San Sebastian Church, Legarda, Manila when its path was blocked by a stainless jeep. A man in white t-shirt and brown vest accosted driver Pepito for having allegedly ran over a stone that hit a son of a general working at the Presidential Security Group. Pepito was made to ride in a jeep. The same man drove the pick-up to a house in Merville Subdivision, Paranaque, Metro Manila, where the victims were illegally detained from December 20 to 23, 1993.

x x x x

3) The act of the detention or kidnapping of the three victims was indubitably illegal. Their detention was not ordered by any competent authority but by the private individual whose mind and heart were focused to illegally amassed huge amount of money thru force and coercion for personal gain;

x x x x

5) Both accused Uyboco and Macias had successfully extorted ransom by compelling the parents of the minors to give in to their unreasonable demands to get the huge amount of money, a gun, and pieces of jewelry x x x.44

These facts were based on the narrations of the prosecution’s witnesses, particularly that of Nimfa, the victim herself and Jepson, the father of the two children abducted and the person from whom ransom was extorted.

Nimfa recounted how she and her wards were abducted in the morning of 20 December 2003 and detained in a house in Merville Subdivision, Parañaque, thus:

A: When we arrived at the office after awhile we boarded the pick-up and then we left, Sir.

x x x x

A: Those who boarded the pick-up, the driver Pepito Acon, Mrs. Yusan Dichavez, the two (2) children and myself, Sir.

x x x x

A: We proceeded to Metrobank Recto, Sir.

x x x x

Q: And when you stopped there, what happened?

A: Mrs. Yusan Dichavez alighted in order to cross the street to go to Metrobank, Sir.

Q: And then what followed next?

A: The driver, Jeson Kirvy, Jeson Kervin and myself made a right turn and we entered an alley, Sir.

x x x x

Q: Before reaching Legarda, do you know of any untowards incident that happened?

A: Yes, sir.

ATTY. PAMARAN:

Q: What?

A: When we were already in front of the San Sebastian Church and Sta. Rita College there was a stainless jeep that block our path, Sir.

Q: How many persons were inside that stainless jeep, if you know?

A: I have not notice, but there were many, Sir.

Q: How did that stainless jeep stop your vehicle?

A: Our driver Pepito Acon was signaled by the persons on the stainless jeep to stay on the side, sir.

Q: What did your driver Pepito Acon do when the sign was made to him?

A: The driver stopped the pick-up and set on the side, Sir.

Q: And then what followed next after he stopped?

x x x x

A: The man told us that we will be brought to the precinct because when we then make a turn at Kentucky a stone was ran and hit the son of the General of PSG from Malacañang, Sir.

x x x x

Q: What did Pepito Acon do? When told to alight?

A: Pepito Acon alighted, Sir.

Q: Then what followed next?

A: After that Pepito alighted and the man who came from the stainless jeep boarded and he was the one who drove, Sir.

x x x x

A: When that man boarded the pick-up there was a T-bird who also boarded on the passenger’s side, Sir.

x x x x

Q: When you entered the gate of Merville Subdivision, where did you proceed?

A: When we entered the gate there was a street which I do not know and when we went straight as to my estimate we were going back to the main gate, Sir.

x x x x

A: The pick-up stopped in front of a low house near the gate, Sir.

Q: When you stopped in front of the gate, that house which is low, what happened?

A: The tomboy alighted and opened the gate of that low house, Sir.

Q: What followed next after the tomboy opened the gate?

A: After the tomboy opened the gate, the driver entered the pick-up inside, Sir.

x x x x

Q: And when you entered the house, what happened?

A: When we entered the house we were confined at the comfort room, Sir.45

Jepson gave an account how appellant demanded ransom from him and eventually got hold of the money, thus:

A: Then Macias offered the release of the two (2) boys for 1.5 Million each, Sir.

A: Then I started begging and bargaining with them and then suddenly Uyboco was again the one continuing the conversation, Sir.

Q: What did you say?

A: After some bargaining and beggings he reduced the demand to 1.7 million, and he asked for my wife to talk to because according to him I was very hard to talk too, Sir.

ATTY. PAMARAN:

Q: You said he, to whom are you referring?

A: To Mr. Uyboco, Sir.

Q: What followed?

A: After some more bargaining and begins he further reduced their demand to1.5 million x x x.

x x x x

Q: And after that what followed?

A: I offered them to fill up the different (sic) in kind, Sir.

Q: Why to offer the different (sic) in kind?

A: To fill up the different (sic) between 1.3 million to 1.5 million, Sir.

Q: So in short, how much cash did you offer?

A: I offered it for 1.3 million, Sir.

Q: How about the different (sic), what will it be?

A: At this point, he asked me to include my gun, Sir.

Q: How about the other balance?

A: My jewelry, Sir.46

x x x x

Q: And what did you do after you were in possession of the money, the jewelries, the gun and the bag?

A: I returned to my office and put the cash in the bag.

Q: In short, what were those inside the bag?

A: The P1.325 million money, the gun and the assorted jewelries.

Q: And after placing them inside the bag, what happened?

A: I left my office at 3:00 PM to proceed to the Pancake House at the

Magallanes Commercial Center.

Q: Where did you place that bag?

A: That bag, at that time, was placed at the back seat when I was going to the Pancake House.

x x x x

Q: What else did he tell you?

A: x x x He told me to put the ransom bag x x x inside my trunk compartment, leave it and lock the car, and walk away without looking back for ten (10) minutes.

Q: After that instruction, what happened, or what did you do?

A: After few minutes, he called again. He told me to drive and park the car beside the car Mitsubishi Colt Mirage with Plate NO. NRZ-863.

Q: Did he tell you where was that Colt Mirage car parked?

A: Yes, in front of the Mercury Drug Store.

Q: And then, what did you do?

A: I followed his instruction.

Q: And what followed next?

A: After few more minutes, he called again and asked if I am in front of the Mercury Drug Store already.

Q: And what was your answer?

A: I told him yes and he again gave me the final arrangement, but he uttered I walk back towards the Pancake House without looking back for ten (10) minutes.

Q: And?

A: And informing me the whereabouts of my sons.

ATTY. PAMARAN:

Q: Did you comply with that instruction?

A: Yes, sir.

Q: What did you do?

A: I walked towards the Pancake House without looking back for more than ten (10) minutes.

Q: That car that you parked near the Mitsubishi Colt, how far was your car the parked form that Colt Mirage?

A: Beside the Colt Mirage, Sir.

Q: And after you parked the car, what followed?

A: I walked towards the Pancake House without looking back and then I turned to the back of the supermarket and I checked my trunk and saw that the bag is gone already.

Q: And what followed thereafter?

A: A few minutes, Uyboco called up and told me that my sons were at the shell station after the Magallanes Commercial Center inside the Bibingkahan.47

Now, appellant seeks to destroy the credibility of these witnesses by imputing inconsistencies, untruthfulness and incredibility in their testimonies.

Appellant harps on the supposed inconsistencies in the testimony of Nimfa, namely: First, Nimfa stated that on the day they were to be released, they, together with Macias, left Merville Subdivision at 4:00 p.m. while appellant stayed behind. However, P/Insp. Escandor testified that at around 4:00 p.m., he saw Macias and appellant at Magallanes Commercial Center. Second, Nimfa could not properly identify the number of kidnappers. Third, Nimfa failed to state in her affidavit and during the direct examination that Sarge had a gun, but later on cross-examination, she intimated that Sarge had a gun. Fourth, it was incredible that Nimfa was able to identify the route taken by the kidnappers to the safe house because she was not allegedly blindfolded. Fifth, it was strange for Nimfa to say that two persons, Macias and appellant, were holding the receiver and the dialing mechanism whenever they hand the phone to her.

Sixth, it was impossible for Nimfa to have access to an operational telephone while in captivity.48 The Court of Appeals correctly dismissed these inconsistencies as immaterial, in this wise:

The purported inconsistencies and discrepancies involve estimations of time or number; hence, the reference thereto would understandably vary. The rule is that inconsistencies in the testimonies of prosecution witnesses on minor details and collateral matters do not affect the substance of their declaration, their veracity or the weight of their testimonies. The inconsistencies and discrepancies of the testimonies, in the case at bar, are not of such nature as would warrant the reversal of the decision appealed from. On the contrary, such trivial inconsistencies strengthen, rather than diminish, Celiz’ testimony as they erase suspicion that the same was rehearsed.

The fact that Uyboco and his companions neither donned masks to hide their faces nor blindfolded or tied up their victims goes to show their brazenness in perpetrating the crime. Besides, familiarity with the victims or their families has never rendered the commission of the crime improbable, but has in fact at times even facilitated its commission. Moreover, the fact that there was a usable phone in the house where Celiz and the kids were held captive only proves that, in this real world, mistakes or blunders are made and there is no such thing as a perfect crime. On a different view, it may even be posited that the incredible happenings narrated by Celiz only highlights the brilliance of Uyboco and his companions. Verily, in committing the crime of kidnapping with ransom, they adopted and pursued unfamiliar strategies to confuse the police authorities, the victim, and the family of the victims.49

Appellant then zeroes in on Jepson and accuses him of lying under oath when he claimed that appellant owed him only P2.3 Million when in fact, appellant owed him P8.5 Million. Appellant charges Jepson of downplaying his closeness to him when in fact they had several business deals and Jepson would address appellant as "Ernie." Moreover, it was unbelievable for Jepson to be able to identify with utmost certainty that the kidnapper he was supposedly talking to was appellant. Finally, appellant claims that Jepson’s motive to maliciously impute a false kidnapping charge against him boils down to money. Among the businesses that Jepson owns was along the same line of business as that of appellant, which is the supply of police equipment to the PNP. To eliminate competition and possibly procure all contracts from the PNP and considering his brother’s close association to then Vice-President Estrada, Jepson crafted and executed a frame up of appellant.

And the Court of Appeals had this to say:

For one, the strategy used, which is the use of unconventional or not so commonly used strategy, to apprehend the kidnappers of Celiz and the Dichaves’ children is, by reason of their special knowledge and expertise, the police operatives’ call or prerogative. Accordingly, in the absence of any evidence that said agents falsely testified against Uyboco, We shall presume regularity in their performance of official duties and disregard Uyboco’s unsubstantiated claim that he was framed up.

Secondly, matters of presentation of witnesses by the prosecution and the determination of which evidence to present are not for Uyboco or even the trial court to decide, but the same rests upon the prosecution. This is so since Section 5, Rule 110 of the Revised Rules of Court expressly vests in the prosecution the direction and control over the prosecution of a case. As the prosecution had other witnesses who it believes could sufficiently prove the case against Uyboco, its non-presentation of other witnesses cannot be taken against the same.50

Time and again, this court has invariably viewed the defense of frame-up with disfavor. Like the defense of alibi, it can be just as easily concocted.51

We are inclined to accord due weight and respect to the ruling of the lower courts in giving credence to the positive testimonies of Nimfa and Jepson, both pointing to appellant as one of the kidnappers. Both witnesses testified in a clear and categorical manner, unfazed by efforts of the defense to discredit them. As a rule, the assessment of the credibility of witnesses and their testimonies is a matter best undertaken by the trial court, which had a unique opportunity to observe the witnesses firsthand and to note their demeanor, conduct and attitude.52 While it is true that the trial judge who conducted the hearing would be in a better position to ascertain the truth or falsity of the testimonies of the witnesses, it does not necessarily follow that a judge who was not present during the trial, as in this case, cannot render a valid and just decision, since the latter can very well rely on the transcribed stenographic notes taken during the trial as the basis of his decision.53

Appellant raises questions which purportedly tend to instill doubt on the prosecution’s theory, thus:

If Uyboco is really the mastermind of the kidnapping syndicate, why would he demand only P1.325M x x x as ransom? Why would he be the one to personally pick-up the ransom money using his own car registered in his son’s name? Why did he not open the bag containing the ransom to check its contents? Why would he be the one to personally hand the phone to Nimfa Celiz without any mask covering his face x x x. Why would he go back to his family residence x x x with the ransom money still intact in the trunk of his car?

If Nimfa Celiz and her wards were indeed kidnapped, why were they not blindfolded x x x? Why were they not tied x x x?

x x x x

If it is true that the house at Merville, Parañaque was used by accused-appellant Uyboco as the place of the alleged detention x x x how come Uyboco signed the lease contract under his own name? x x x Certainly, any person with the education attainment of at least high school degree, much more so an established businessman like accused-appellant would know that the lease contract and the post-dated checks are incriminating evidence.

x x x (h)ow come no effort was exerted in apprehending Uyboco during day 1 of the kidnapping? x x x Why is their story focused only on the day of the ransom payment? Why did they not apply for a warrant of arrest against accused-appellant Uyboco when they supposedly knew that from day 1, he was the kidnapper?

Why were there no tapes presented in evidence which recorded the conversations between the kidnappers x x x.54

Furthermore, appellant stresses that his financial status as an established and well-off businessman negates any motive on his part to resort to kidnapping.

If we indulge appellant’s speculations, we could readily provide for the answers to all these questions – that appellant originally demanded P26 Million but this had been substantially reduced due to aggressive bargaining and negotiations; that appellant personally picked up the ransom money because

he could not trust anybody to do the work for him; that appellant did not open the bag containing the money because he trusted Jepson, who then out of fear, would deliver as instructed; that appellant did not cover his face in front of Nimfa because he thought Nimfa would not recognize him; that appellant went back to his family residence because he never thought that Jepson would recognize him as the voice behind one of the kidnappers; that the victims were not blindfolded or tied because Nimfa, who appeared to be ignorant to the kidnappers and the two children barely 5 years old would be emboldened to escape; that appellant never thought that the police would discover the place of detention; that the police employed a different strategy, which is to first secure the victims before they apprehend the kidnappers; that to secure a warrant would be futile as the police then did not have sufficient evidence to pin down appellant to the crime of kidnapping; that there were no actual record of the telephone conversations between Jepson and the kidnappers.

However, to individually address each and every question would be tantamount to engaging in a battle of endless speculations, which do not have a place in a court of law where proof or hard evidence takes precedence. On the other hand, the prosecution presented testimonies and evidence to prove that kidnapping occurred and that appellant is the author thereof.

Appellant seeks to pierce the presumption of regularity enjoyed by police officers to anchor his argument that he has been framed up. He belittles the efforts of the police officers who participated in the operation. Appellant claims that despite knowledge of the place of alleged detention, the police did not try to rescue the kidnap victims. Appellant also notes that while P/Supt. Chan denies installing any listening device to record the conversations of the kidnappers and Jepson, the interview made by a reporter for a television network shows that Major Aquino admitted to taped conversations of appellant’s alleged negotiations for the ransom with Jepson. Appellant insists that these taped conversations do exist.

Appellant cannot rely on a vague mention of an interview, if it indeed exists, to discredit the testimony of P/Supt. Chan. The truth of the matter is appellant failed to prove the existence of the alleged taped conversations. The matters of failure of the police officer to properly document the alleged pay-off, the non-production of the master copy of the video tape, and the chain of custody supposedly broken are not semblance of neglect so as to debunk the presumption of regularity. In the absence of proof of motive on the part of the police officers to falsely ascribe a serious crime against the accused, the presumption of regularity in the performance of official duty, as well as the trial court's assessment on the credibility of the apprehending officers, shall prevail over the accused's self-serving and uncorroborated claim of frame-up.55

Appellant then questions the validity of his arrest and the search conducted inside his car in absence of a warrant. The arrest was validly executed pursuant to Section 5, paragraph (b) of Rule 113 of the Rules of Court, which provides:

SEC. 5. Arrest without warrant; when lawful. — A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact been committed and he has personal knowledge of facts indicating that the person to be arrested has committed it; and, (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. (Emphasis supplied)

The second instance of lawful warrantless arrest covered by paragraph (b) cited above necessitates two stringent requirements before a warrantless arrest can be effected: (1) an offense has just been committed; and (2) the person making the arrest has personal knowledge of facts indicating that the person to be arrested has committed it.56

Records show that both requirements are present in the instant case. The police officers present in Magallanes Commercial Center were able to witness the pay-off which effectively consummates the crime of kidnapping. They all saw appellant take the money from the car trunk of Jepson. Such knowledge was then relayed to the other police officers stationed in Fort Bonifacio where appellant was expected to pass by.

Personal knowledge of facts must be based on probable cause, which means an actual belief or reasonable grounds of suspicion. The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion, therefore, must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest. Section 5, Rule 113 of the 1985 Rules on Criminal Procedure does not require the arresting officers to personally witness the commission of the offense with their own eyes.57

It is sufficient for the arresting team that they were monitoring the pay-off for a number of hours long enough for them to be informed that it was indeed appellant, who was the kidnapper. This is equivalent to personal knowledge based on probable cause.

Likewise, the search conducted inside the car of appellant was legal because the latter consented to such search as testified by P/Supt. Cruz. Even assuming that appellant did not give his consent for the police to search the car, they can still validly do so by virtue of a search incident to a lawful arrest under Section 13, Rule 126 of the Rules of Court which states:

SEC. 13. Search incident to lawful arrest. — A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant.

In lawful arrests, it becomes both the duty and the right of the apprehending officers to conduct a warrantless search not only on the person of the suspect, but also in the permissible area within the latter's reach. Otherwise stated, a valid arrest allows the seizure of evidence or dangerous weapons either on the person of the one arrested or within the area of his immediate control. The phrase "within the area of his immediate control" means the area from within which he might gain possession of a weapon or destructible evidence.58 Therefore, it is only but expected and legally so for the police to search his car as he was driving it when he was arrested.

Appellant avers that it was not proven that appellant was present and in fact participated in the abduction of the victims. Lacking this element, appellant should have been acquitted. In a related argument, appellant contends that conspiracy was not proven in the execution of the crime, therefore, appellant’s participation was not sufficiently established.

The Court of Appeal effectively addressed these issues, to wit:

The prosecution was able to prove that: 1) At the time of the kidnapping, the house where Celiz and the Dichaves’ children were kept was being leased by Uyboco; 2) Uyboco was present in the said house at the time when Celiz and the Dichaves’ children were being kept thereat; 3) there being no evidence to the contrary, Uyboco’s presence in the same is voluntary; 4) that Uyboco has in his possession some of the ransom payment; and, 5) that Uyboco was the one who told them that the balance of the ransom payment is with Macias. All these circumstances clearly point out that Uyboco, together with several unidentified persons, agreed or decided and conspired, to commit kidnapping for ransom.

x x x x

x x x Uyboco’s claim, that since it was not proven that he was one of the passengers of the jeep which waylaid the Dichaves’ vehicle on December 20, 1993, he could not be convicted of kidnapping for ransom considering that his participation, if any, was merely to provide the house where the victims were kept, is misplaced.lawph!l

Moreover, to Our mind, it is inconceivable that members of a kidnapping syndicate would entrust the performance of an essential and sensitive phase of their criminal scheme, i.e. possession of the ransom payment, to people not in cahoots with them, and who had no knowledge whatsoever of the details of their nefarious plan.59

The testimonies of Nimfa and Jepson sufficiently point to the participation of appellant. While he was not present during the abduction, he was present in the house where the victims were detained, oftentimes giving the phone to Nimfa to talk to Jepson. He also actively demanded ransom from Jepson. The conspiracy was likewise proven by the above testimonies. Appellant conspired with Macias and other John Does in committing the crime. Therefore, even with the absence of appellant in the abduction stage, he is still liable for kidnapping for ransom because in conspiracy, the act of one is the act of all.60

Based on the foregoing, we sustain appellant’s conviction.

WHEREFORE, the Decision dated 30 August 2002 in Criminal Case Nos. 93-130980, 93-132606, and 93-132607 RTC, Branch 18, Manila, finding Ernesto Uyboco y Ramos guilty of kidnapping for ransom, and the Decision dated 27 September 2006 of the Court of Appeals, affirming in toto the Decision of the RTC, are AFFIRMED.

SO ORDERED.

Footnotes

1 Penned by Associate Justice Normandie B. Pizarro with Associate Justices Regalado E. Maambong and Jose Catral Mendoza (now Supreme Court Associate Justice), concurring. Rollo, pp. 3-27.2 Penned by Acting Presiding Judge Edelwina Catubig Pastoral. CA rollo, pp. 94-128.3 Records, Vol. I, pp. 260-261.4 Id. at 257-258.5 Id. at 260-261.

6 The first arraignment was held in abeyance and the DOJ was ordered to conduct preliminary investigation by the Court of Appeals while the second arraignment was postponed when the Court of Appeals issued a restraining order. See CA rollo, p.7 TSN, 12 December 1996, pp. 23-38.8 Id. at 43-45.9 TSN, 8 May 1997, pp. 8-14.10 TSN, 12 December 1996, pp. 48-50.11 TSN, 9 January 1997, pp. 14-16.12 TSN, 8 May 1997, p. 18.13 Id. at 27.14 TSN, 9 January 1997, pp. 19-22.15 TSN, 8 May 1997, pp. 32-34.16 Id. at 52-53.17 Id. at 60.18 TSN, 7 January 1997, pp. 41-42.19 TSN, 9 May 1997, pp. 6-13.20 TSN, 15 April 1999, pp. 8-16.21 Id. at 34-42.22 TSN, 8 June 1999, pp. 5-11.23 TSN, 16 February 1999, pp. 4-13.24 Id. at 13-22.25 TSN, 9 May 1997, pp. 15-27.26 TSN, 16 February 1999, pp. 4-24.27 Id. at 33-42.28 CA rollo, p. 108.29 TSN, 12 November 1999, pp. 10-30.30 TSN, 10 December 1999, pp. 23-62.31 TSN, 13 December 1999, pp. 8-26.32 TSN, 8 December 2000, pp. 4-6.33 TSN, 29 May 2001, pp. 11-12.34 TSN, 4 June 2001, pp. 3-9.35 Art. 89. How criminal liability is totally extinguished. — Criminal liability is totally extinguished:1. By the death of the convict, as to the personal penalties and as to pecuniary penalties, liability therefor is extinguished only when the death of the offender occurs before final judgment.36 CA rollo, pp. 127-128.37 G.R. No. 147678-87, 7 July 2004, 433 SCRA 640.38 Rollo, p. 2.39 Id. at 27.40 Id. at 36.41 Id. at 49.42 CA rollo, pp. 192-193.43 People v. Cruz, Jr., G.R. No. 168446, 18 September 2009, 600 SCRA 449, 463-464 citing People. v. Soberano, G.R. No. 116234, 6 November 1997, 281 SCRA 438, 446; People v. Tan, G.R. No. 177566, 26 March 2008, 549 SCRA 489, 498 citing People v. Ejandra, G.R. No. 134203, 27 May 2004, 429 SCRA 364, 381-382.44 CA rollo, p. 122.45 TSN, 12 December 1996, pp. 24-45.

46 TSN, 8 May 1997, pp. 51-54.47 TSN, 9 May 1997, pp. 5-12.48 CA rollo, pp. 211-225.49 Rollo, pp. 19-20.50 Id. at 22.51 People v. Silongan, 449 Phil. 478, 497 (2003).52 People v. Morales, G.R. No. 148518, 15 April 2004, 427 SCRA 765, 784.53 People v. Pacapac, G.R. No. 90623, 7 September 1995, 248 SCRA 77, 92.54 CA rollo, pp. 203-205.55 People v. Gutierrez, G.R. No. 177777, 4 December 2009, 607 SCRA 377, 384 citing Mamangun v. People, G.R. No. 149152, 2 February 2007, 514 SCRA 44, 53; People v. Chua Uy, 384 Phil. 70, 85 (2000).56 People v. Agojo, G.R. No. 181318, 16 April 2009, 585 SCRA 652, 664-665.57 Abelita III v. Doria, G.R. No. 170672, 14 August 2009, 596 SCRA 220, 226-227 citing People v. Cubcubin, Jr., 413 Phil. 249, 267 (2001); Umil v. Ramos, G.R. No. 81567, 3 October 1991, 202 SCRA 251, 261; People v. Lozada, 454 Phil. 241, 250-251 (2003).58 Valeroso v. Court of Appeals, G.R. No. 164815, 3 September 2009, 598 SCRA 41, 55-56 citing People v. Cueno, 359 Phil. 151, 163 (1998); People v. Cubcubin, Jr., id. at 271; People v. Estella, 443 Phil. 669, 683 (2003).59 Rollo, pp. 24-25.60 People v. Pangilinan, 443 Phil. 198, 239 (2003) citing People v. Boller, 429 Phil. 754, 766 (2002); People v. Bacungay, 428 Phil. 798 (2002); People v. Manlansing, 428 Phil. 743, 756 (2002).

G.R. No. 191532 August 15, 2012

MARGARITA AMBRE Y CAYUNI, Petitioner, vs.PEOPLE OF THE PHILIPPINES Respondent.

PEREZ,*

REYES,**

D E C I S I O N

MENDOZA, J.:

This is a petition for review on certiorari seeking to reverse and set aside the November 26, 2009 Decision 1 and the March 9, 2010 Resolution2 of the Court of Appeals (CA) in CA-G.R. CR No. 31957, which affirmed the September 1, 2008 Decision3 of the Regional Trial Court, Branch 123, Caloocan City, (RTC) in Criminal Case No .. C-73029, finding petitioner Margarita Ambre y Cayuni (Ambre) guilty beyond reasonable doubt of the crime of violation of Section 15, Article II of Republic Act (R.A.) No. 9165.

THE FACTS

Two separate Informations were filed against Ambre, and co-accused, Bernie Castro (Castro) and Kaycee Mendoza (Mendoza), before the RTC charging them with illegal possession of drug paraphernalia docketed as Criminal Case No. C-73028, and illegal use of methylamphetamine hydrochloride, otherwise known as shabu, docketed as Criminal Case No. C-73029. The Informations indicting the accused read:

Criminal Case No. C-73028

That on or about 20th day of April 2005 in Caloocan City, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law, did then and there willfully, unlawfully and feloniously have in his possession, custody and control one (1) unsealed transparent plastic sachet containing traces of white crystalline substance, (METHYLAMPHETAMINE HYDROCHLORIDE), one (1) rolled aluminum foil strip containing traces of white crystalline substance, (METHYLAMPHETAMINE HYDROCHLORIDE), one (1) folded aluminum foil strip containing traces of white crystalline substance, (METHYLAMPHETAMINE HYDROCHLORIDE) and two (2) disposable plastic lighters, knowing the same are paraphernalias instruments apparatus fit or intended for smoking, consuming, administering, ingesting or introducing dangerous drug (METHYLAMPHETAMINE HYDROCHLORIDE) into the body.

Contrary to law.4

Criminal Case No. C-73029

That on or about the 20th of April 2005 in Caloocan City, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually helping with one another, without being authorized by law, did then and there willfully, unlawfully and feloniously use

and sniff Methylamphetamine Hydrochloride (Shabu), knowing the same to be a dangerous drug under the provisions of the above-cited law.

Contrary to law.5

When arraigned, Castro and Mendoza pleaded guilty to both charges. Consequently, they were meted the penalty of imprisonment of six (6) months and one (1) day to one (1) year and eight (8) months and a fine of P25,000.00 in Criminal Case No. C-73028. For their conviction in Criminal Case No. C-73029, the RTC ordered their confinement at the Center for the Ultimate Rehabilitation of Drug Dependents (CUREDD) for a period of six (6) months.6

Ambre, on the other hand, entered a plea of not guilty to the charges.7 Trial on the merits ensued.

The Version of the Prosecution

From the testimonies of prosecution witnesses PO3 Fernando Moran (PO3 Moran), PO1 Ronald Allan Mateo (PO1 Mateo), PO2 Randulfo Hipolito (PO2 Hipolito), and P/Insp. Jessie dela Rosa (P/Insp. dela Rosa), it appeared that on April 20, 2005, the Caloocan Police Station Anti-Illegal Drug-Special Operation Unit conducted a buy-bust operation pursuant to a tip from a police informant that a certain Abdulah Sultan (Sultan) and his wife Ina Aderp (Aderp) were engaged in the selling of dangerous drugs at a residential compound in Caloocan City; that the buy-bust operation resulted in the arrest of Aderp and a certain Moctar Tagoranao (Tagoranao); that Sultan ran away from the scene of the entrapment operation and PO3 Moran, PO2 Masi and PO1 Mateo, pursued him; that in the course of the chase, Sultan led the said police officers to his house; that inside the house, the police operatives found Ambre, Castro and Mendoza having a pot session; that Ambre, in particular, was caught sniffing what was suspected to be shabu in a rolled up aluminum foil; and that PO3 Moran ran after Sultan while PO2 Masi and PO1 Mateo arrested Ambre, Castro and Mendoza for illegal use of shabu.

The items confiscated from the three were marked and, thereafter, submitted for laboratory examination. Physical Science Report No. DT-041-05 to DT-043-05 stated that the urine samples taken from Ambre and her coaccused were positive for the presence of shabu while Physical Science Report No. D-149-05 showed that the items seized from them were all found positive for traces of shabu.8

The Version of the Defense

Ambre vehemently denied the charges against her. Through the testimonies of Ambre, Mendoza and Lily Rosete (Rosete), the defense claimed that on the afternoon of April 20, 2005, Ambre was inside the residential compound in Caloocan to buy malong; that her mother asked Rosete to accompany her because Rosete’s daughter-in-law, Nancy Buban (Buban), was a resident of Phase 12, Caloocan City, an area inhabited by Muslims; that when they failed to buy malong, Rosete and Buban left her inside the residential compound to look for other vendors; that ten minutes later, the policemen barged inside the compound and arrested her; that she was detained at the Caloocan City Jail where she met Castro, Mendoza and Tagoranao; and that she was not brought to the Philippine National Police (PNP) Crime Laboratory for drug testing.

Rosete further testified that after she had left Ambre inside the compound to find other malong vendors, she returned fifteen minutes later and learned that the policemen had arrested people inside the compound including Ambre.

Mendoza, who was convicted in Criminal Case No. C-73029, claimed that no pot session took place on the afternoon of April 20, 2005. She averred that she and Ambre were merely inside the residential compound, when policemen suddenly came in and pointed guns at them.9

The Ruling of the Regional Trial Court

On September 1, 2008, the RTC rendered its decision declaring that the prosecution was able to establish with certitude the guilt of Ambre for illegal use of methylamphetamine hydrochloride or violation of Section 15, Article II of R.A. No. 9165. The RTC, however, acquitted her of the crime of violation of Section 12, Article II of R.A. No. 9165 for failure of the prosecution to prove with particularity the drug paraphernalia found in her possession. The trial court adjudged:

WHEREFORE, premises considered, judgment is hereby rendered as follows:

1) In Crim. Case No. C- 73028, finding accused MARGARITA AMBRE Y CAYUNI not guilty of the crime of Violation of Section 12, Article II, RA 9165;

2)In Crim. Case No. C-73029, finding accused MARGARITA AMBRE Y CAYUNI guilty beyond reasonable doubt of the crime of Violation of Sec. 15, Art. II RA 9165 and hereby sentences her to be confined and rehabilitated at the government rehabilitation center in Bicutan, Taguig, Metro Manila for a period of six (6) months. The six (6) month period of rehabilitation shall commence only from the time that she is brought inside the rehabilitation center and its promulgation by this court for which the accused shall be notified.

The shabu subject of these cases is hereby confiscated in favor of the government to be disposed of in accordance with the rules governing the same.

Costs against the accused.

SO ORDERED.10

The Decision of the Court of Appeals

Undaunted, Ambre appealed the judgment of conviction before the CA professing her innocence of the crime. On November 26, 2009, the CA rendered the assailed decision, the dispositive portion of which reads:

WHEREFORE, premises considered, the appeal is hereby DENIED. The Decision dated September 1, 2008 of the Regional Trial Court, Branch 123, Caloocan City is AFFIRMED.

SO ORDERED.11

Ambre's motion for reconsideration was denied by the CA in its March 9, 2010 Resolution. Hence, she filed this petition

THE ISSUES

Ambre raised the following issues:

1. WHETHER OR NOT THE ARREST OF AND THE SEARCH DONE AGAINST THE PETITIONER ON APRIL 20, 2005 (THAT YIELDED ALLEGED DRUG PARAPHERNALIA) CONFORMED WITH THE MANDATED LEGAL PROCEDURES IN CONDUCTING A BUY-BUST OPERATION.

2. WHETHER OR NOT THE ARREST OF AND THE SEARCH DONE AGAINST THE PETITIONER WERE PART AND PARCEL OF THE DISMISSED AND DISCREDITED BUY-BUST OPERATIONS OF THE POLICE AND/OR "FRUITS OF THE POISONOUS TREE" AND HENCE, WERE ILLEGAL.

3. WHETHER OR NOT THE PROSECUTION'S EVIDENCE THAT WERE SEIZED DURING THE ILLEGAL BUY-BUST OPERATION ARE ADMISSIBLE AS EVIDENCE.

4. WHETHER OR NOT THE EXCLUSION OR DISREGARD OF THE FAVORABLE TESTIMONY OF PETITIONER'S WITNESS, HER CO-ACCUSED, KAYCEE MENDOZA, ON THE GROUND THAT THE LATTER EARLIER PLED GUILTY TO SUCH ILLEGAL USE, HAD VIOLATED THE RULE ON INTER ALIOS ACTA UNDER SECTION 26, RULE 130 OF THE RULES OF COURT.

5. WHETHER OR NOT THE PETITIONER'S PENALTY OF SIX (6) MONTHS REHABILITATION IN A GOVERNMENT CENTER IS A NULLITY GIVEN THE LACK OF CONFIRMATORY TEST AS REQUIRED UNDER R.A. 9165 ("COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002").12

A perusal of the pleadings filed by the parties leads the Court to conclude that the case revolves on the following core issues:

1.) Whether the warrantless arrest of Ambre and the search of her person was valid; and

2.) Whether the items seized are inadmissible in evidence.

Essentially, Ambre insists that the warrantless arrest and search made against her were illegal because no offense was being committed at the time and the police operatives were not authorized by a judicial order to enter the dwelling of Sultan. She argues that the alleged "hot pursuit" on Sultan which ended in the latter's house, where she, Mendoza and Castro were supposedly found having a pot session, was more imaginary than real. In this regard, Ambre cites the April 29, 2005 Resolution of the Prosecutor's Office of Caloocan City dismissing the case against Aderp and Sultan for insufficiency of evidence because the April 20, 2005 buy-bust operation was highly suspicious and doubtful. She posits that the items allegedly seized from her were inadmissible in evidence being fruits of a poisonous tree. She claims that the omission of the apprehending team to observe the procedure outlined in R.A. No. 9165 for the seizure of evidence in drugs cases significantly impairs the prosecution’s case. Lastly, Ambre maintains that she was not subjected to a confirmatory test and, hence, the imposition of the penalty of six months rehabilitation was not justified.

For the State, the Office of the Solicitor General (OSG) urges this Court to affirm the challenged decision for failure of Ambre to show that the RTC committed any error in convicting her of illegal use of shabu. The OSG insists that Ambre was lawfully arrested in accordance with Section 5, Rule 113 of the Rules of Court. It is of the opinion that the credible and compelling evidence of the prosecution could not be displaced by the empty denial offered by Ambre.

THE COURT'S RULING

The conviction of Ambre stands.

Section 2, Article III13 of the Constitution mandates that a search and seizure must be carried out through or on the strength of a judicial warrant predicated upon the existence of probable cause, absent which such search and seizure becomes "unreasonable" within the meaning of said constitutional provision. Evidence obtained and confiscated on the occasion of such an unreasonable search and seizure is tainted and should be excluded for being the proverbial fruit of a poisonous tree. In the language of the fundamental law, it shall be inadmissible in evidence for any purpose in any proceeding.14

This exclusionary rule is not, however, an absolute and rigid proscription. One of the recognized exception established by jurisprudence is search incident to a lawful arrest.15 In this exception, the law requires that a lawful arrest must precede the search of a person and his belongings. As a rule, an arrest is considered legitimate if effected with a valid warrant of arrest. Section 5, Rule 113 of the Rules of Criminal Procedure, however, recognizes permissible warrantless arrests:

"Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. (Emphasis supplied)

Section 5, above, provides three (3) instances when warrantless arrest may be lawfully effected: (a) arrest of a suspect in flagrante delicto; (b) arrest of a suspect where, based on personal knowledge of the arresting officer, there is probable cause that said suspect was the perpetrator of a crime which had just been committed; (c) arrest of a prisoner who has escaped from custody serving final judgment or temporarily confined during the pendency of his case or has escaped while being transferred from one confinement to another.

In arrest in flagrante delicto, the accused is apprehended at the very moment he is committing or attempting to commit or has just committed an offense in the presence of the arresting officer. Clearly, to constitute a valid in flagrante delicto arrest, two requisites must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer.16

In the case at bench, there is no gainsaying that Ambre was caught by the police officers in the act of using shabu and, thus, can be lawfully arrested without a warrant. PO1 Mateo positively identified Ambre sniffing suspected shabu from an aluminum foil being held by Castro.17 Ambre, however, made

much of the fact that there was no prior valid intrusion in the residence of Sultan. The argument is specious.

Suffice it to state that prior justification for intrusion or prior lawful intrusion is not an element of an arrest in flagrante delicto. Thus, even granting arguendo that the apprehending officers had no legal right to be present in the dwelling of Sultan, it would not render unlawful the arrest of Ambre, who was seen sniffing shabu with Castro and Mendoza in a pot session by the police officers. Accordingly, PO2 Masi and PO1 Mateo were not only authorized but were also duty-bound to arrest Ambre together with Castro and Mendoza for illegal use of methamphetamine hydrochloride in violation of Section 15, Article II of R.A. No. 9165.

To write finis to the issue of validity and irregularity in her warrantless arrest, the Court holds that Ambre is deemed to have waived her objections to her arrest for not raising them before entering her plea.18

Considering that the warrantless arrest of Ambre was valid, the subsequent search and seizure done on her person was likewise lawful. After all, a legitimate warrantless arrest necessarily cloaks the arresting police officer with authority to validly search and seize from the offender (1) dangerous weapons, and (2) those that may be used as proof of the commission of an offense.19

Further, the physical evidence corroborates the testimonies of the prosecution witnesses that Ambre, together with Castro and Mendoza, were illegally using shabu. The urine samples taken from them were found positive for the presence of shabu, as indicated in Physical Science Report No. DT-041-05 to DT-043-05. It was likewise found that the items seized from the three were all positive for traces of shabu as contained in Physical Science Report No. D-149-05 dated April 21, 2005. These findings were unrebutted.

Ambre's assertion that her conviction was incorrect, because the evidence against her was obtained in violation of the procedure laid down in R.A. No. 9165, is untenable.

While ideally the procedure on the chain of custody should be perfect and unbroken, in reality, it is not as it is almost always impossible to obtain an unbroken chain.20 This Court, however, has consistently held that the most important factor is the preservation of the integrity and evidentiary value of the seized items.21 In this case, the prosecution was able to demonstrate that the integrity and evidentiary value of the confiscated drug paraphernalia had not been compromised. Hence, even though the prosecution failed to submit in evidence the physical inventory and photograph of the drug paraphernalia with traces of shabu, this will not render Ambre's arrest illegal or the items seized from her inadmissible.

Records bear out that after the arrest of Ambre with Castro and Mendoza, the following items were confiscated from them: one (1) unsealed sachet with traces of suspected shabu; one (1) strip of rolled up aluminum foil with traces of suspected shabu; one (1) folded piece of aluminum foil with traces of white crystalline substance also believed to be shabu; and two (2) yellow disposable lighters. Upon arrival at the police station, PO3 Moran turned over the seized items to PO2 Hipolito who immediately marked them in the presence of the former. All the pieces of evidence were placed inside an improvised envelope marked as "SAID-SOU EVIDENCE 04-20-05." With the Request for Laboratory Examination, PO2 Hipolito brought the confiscated items to the PNP Crime Laboratory and delivered them to P/Insp. dela Rosa, a forensic chemist, who found all the items, except the disposable lighters, positive for traces of

shabu. Verily, the prosecution had adduced ample evidence to account for the crucial links in the chain of custody of the seized items.

Even if the Court strikes down the seized drug paraphernalia with traces of shabu as inadmissible, Ambre will not be exculpated from criminal liability. First, let it be underscored that proof of the existence and possession by the accused of drug paraphernalia is not a condition sine qua non for conviction of illegal use of dangerous drugs. The law merely considers possession of drug paraphernalia as prima facie evidence that the possessor has smoked, ingested or used a dangerous drug and creates a presumption that he has violated Section 15 of R.A. No. 9165.22

Secondly, the testimonies of the police officers have adequately established with moral certainty the commission of the crime charged in the information and the identity of Ambre as the perpetrator. At this juncture, the Court affirms the RTC's finding that the police officers' testimonies deserve full faith and credit. Appellate courts, generally, will not disturb the trial court's assessment of a witness' credibility unless certain material facts and circumstances have been overlooked or arbitrarily disregarded.23 The Court finds no reason to deviate from this rule in this case.

Likewise, the Court upholds the presumption of regularity in the performance of official duties. The presumption remains because the defense failed to present clear and convincing evidence that the police officers did not properly perform their duty or that they were inspired by an improper motive. The presumption was not overcome as there was no showing that PO3 Moran, PO1 Mateo, PO2 Hipolito, and P/Insp. dela Rosa were impelled with improper motive to falsely impute such offense against Ambre.

As against the positive testimonies of the prosecution witnesses, the defense of denial offered by Ambre must simply fail. Bare denials cannot prevail over positive identification made by the prosecution witnesses.24 Besides, this Court has held in a catena of cases that the defense of denial or frame-up has been viewed with disfavor for it can just as easily be concocted and is a common and standard ploy in most prosecutions for violation of the Dangerous Drugs Act.25

Finally, Ambre contends that the penalty of six months of rehabilitation in a government center imposed on her was a nullity, in view of the alleged lack of confirmatory test. The Court is not persuaded.

It must be emphasized that in no instance did Ambre challenge, at the RTC, the supposed absence of confirmatory drug test conducted on her. Ambre only questioned the alleged omission when she appealed he·r conviction before the CA. It was too late in the day for her to do so. Wellentrenched is the rule that litigants cannot raise an issue for the first time on appeal as this would contravene the basic rules of fair play and justice.26

WHEREFORE, the petition is DENIED. The assailed November 26, 2009 Decision and the March 9, 2010 Resolution of the Court of Appeals in CA-G.R. CR No. 31957 are hereby AFFIRMED.

SO ORDERED.

Footnotes

* Designated additional member in lieu or Associate Justice Diosdado M. Peralta, per Raffle dated September 19, 2011.** Designated additional member in lieu of Associate Justice Estela M. Perlas-Bernabe, per Special Order No. 1283 dated August 6, 2012.1 Penned by Associate Justice Ramon R. Garcia v. ith Associate Justice Portia Alii'lo-Hormachuelos and Associate Justice Fernanda Lampas Peralta, concurring; rollo, pp. 31-50.2 ld. at 64-65.3 Penned by Judge Edmundo T. Acuna; id. at 66-76.4 Id. at 66.5 Id. at 66-67.6Id. at 34.7 Id. at 67.8 Id. at 137-140.9 Id. at 13-14.10 Id. at 75-76.11 Id. at 50.12 Id. at 16.13 Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.14 Sec.3 (2), Art. III, 1987 Constitution.15People v. Delos Reyes, G.R. No. 174774, August 31, 2011, 656 SCRA 417, 449.16 People v. Chua, 444 Phil. 757, 770 (2003).17 Rollo, p. 68.18 People v. Ng Yik Bun, G.R. No. 180452, January 10, 2011, 639 SCRA 88, 103-104.19 Section 13, Rule 126, Rules of Court.20People v. Mendoza, G.R. No. 189327, February 29, 2012.21People v. Manlangit, G.R. No. 189806, January 12, 2011, 639 SCRA 455, 469.22 Section 12, par. 2, Art. II, R.A. No. 9165.23 People v. Gregorio, Jr., G.R. No. 174474, May 25, 2007, 523 SCRA 216, 227.24People v. Unisa, G.R. No. 185721, September 28, 2011.25People v. Astudillo, 440 Phil. 203, 224 (2002).