Pasay y Vocal v. People

THIRD DIVISION

[G.R. No. 248965. October 6, 2021.]

J-AR PASAY y VOCAL, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, Third Division, issued a Resolution dated October 6, 2021, which reads as follows:

"G.R. No. 248965 (J-AR PASAY y VOCAL, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent). — On appeal is the Decision 1 promulgated on 29 May 2019 and Resolution 2 promulgated on 31 July 2019 by the Court of Appeals (CA) in CA-G.R. CR-HC No. 39670, which affirmed the Decision 3 dated 16 February 2017 of Branch 68, Regional Trial Court of Binangonan, Rizal (RTC) in Criminal Case No. (Crim. Case) 13-433 finding petitioner J-Ar Pasay y Vocal (petitioner) guilty beyond reasonable doubt of Violation of Section 11, second paragraph, No. 3, Article II of Republic Act No. (RA) 9165 4 for possession of dangerous drugs.

Antecedents

The Information charging petitioner with illegal possession of dangerous drugs was written as follows:

That on or about the 3rd day of October, 2013, in the Municipality of Cardona, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did, then and there willfully, unlawfully and feloniously have in his possession, custody and control one (1) heat-sealed transparent plastic sachet containing 0.04 gram of white crystalline substance which after the corresponding laboratory examination conducted by the PNP Crime Laboratory gave positive result to the tests for Methamphetamine Hydrochloride, also known as "shabu," a dangerous drug, in violation of the above-cited law.

Contrary to law. 5

Upon his arraignment on 29 October 2013, petitioner, assisted by counsel de officio, entered a plea of not guilty. 6

The CA summarized the evidence for both parties, thus:

EVIDENCE FOR THE PROSECUTION

PO1 Angelo Isidro ("PO1 Isidro ") testified for the Prosecution.

The Prosecution dispensed with the testimony of PSI Beaune V. Villaraza ("PSI Villaraza," Forensic Chemist), after the parties admitted the following facts: on 03 October 2013, PO1 Isidro indorsed one heat-sealed transparent plastic sachet containing white crystalline substance marked as "JVP-1," to PSI Villaraza; PSI Villaraza received the specimen. and the Request for Laboratory Examination; PSI Villaraza conducted the qualitative examination on the specimen, and the specimen tested positive for methamphetamine hydrochloride, per the Chemistry Report Number D-378-13; PSI Villaraza brought the specimen to the RTC for identification.

The evidence for the Prosecution is summarized thus: on 03 October 2013, the Police received the report that certain individuals were playing cara y cruz (a form of illegal gambling) in Barangay San Roque, Cardona, Rizal. After receiving the report, PO1 Isidro and PO1 Jefferson Monteras ("PO1 Monteras") proceeded to the [sic] Barangay San Roque.

Upon arrival at Barangay San Roque, PO1 Isidro and PO1 Monteras saw about ten people playing cara y cruz at the covered court of San Jacinto Street, Barangay San Roque, Cardona. As PO1 Isidro and PO1 Monteras were approaching the group of people who were playing cara y cruz, a teenager recognized PO1 Isidro and PO1 Monteras and shouted, "May mga pulis!" (the police are here!) Thus, the players scampered to different directions.

PO1 Isidro and PO1 Monteras were able to apprehend the [petitioner] Pasay. During the arrest, PO1 Isidro asked the [petitioner] Pasay to open his ([petitioner] Pasay) hand, and when the [petitioner] Pasay opened his hand, the police discovered a plastic sachet (wrapped in pink paper), containing a white crystalline substance suspected to be shabu. PO1 Isidro marked the seized item with "JVP-1" at the place where the police arrested the [petitioner] Pasay; PO1 Isidro and PO1 Monteras brought the [petitioner] Pasay, and the seized item, to the police station.

At the police station, PO1 Isidro prepared the Request for Laboratory Examination, Pinagsama-samang Malayang Sinumpaang Salaysay, and the Receipt/Inventory of Evidence Seized Photograph of the Drugs in the Presence of Accused or Person/s from Whom Seized Items Were Confiscated (Section 231 of RA 9165). During the inventory, Barangay Kagawad Beltesizar Martinez ("Barangay Kagawad Martinez") was present, and Barangay Kagawad Martinez signed the Receipt/Inventory of Evidence Seized Photograph of the Drugs in the Presence of Accused or Person/s from Whom Seized Items Were Confiscated (Section 231 of RA 9165). PO1 Isidro took pictures of the [petitioner] and the seized contraband.

PO1 Isidro indorsed the specimen to PSI Villaraza for laboratory examination.

EVIDENCE FOR THE [PETITIONER]

The following persons testified for the Defense: [petitioner] Pasay and Mae Villaran Rigor ("Mae," cousin of [petitioner] Pasay)

The evidence for the Defense is summarized thus: on 03 October 2013 at around 9:00 a.m., the [petitioner] Pasay was sleeping in Aning Villaran's ("Aning," appellant Pasay's aunt) house in Ocampo Street, Barangay San Roque, and the [petitioner] Pasay was not at the covered court of San Jacinto Street, Barangay San Roque, Cardona.

When the [petitioner] Pasay woke up, the police handcuffed the [petitioner] Pasay. PO1 Manumbo and PO2 Mendoza arrested the [petitioner] Pasay. The [petitioner] Pasay recognized PO1 Manumbo and PO2 Mendoza, because these two policemen had arrested the [petitioner] Pasay previously.

The [petitioner] Pasay denied seeing PO1 Isidro and PO1 Monteras. The plastic sachet of shabu came from the police at the police station. PO1 Monteras gave the [petitioner] Pasay the plastic sachet of shabu, after the [petitioner] Pasay's parents paid the police P17,000.00 so that the police would arrest the [petitioner] Pasay. 7

Ruling of the RTC

The RTC found petitioner guilty as charged. The dispositive portion of the RTC's Decision read:

WHEREFORE, premises considered, judgment is hereby rendered finding accused J-Ar Pasay y Vocal GUILTY beyond reasonable doubt of violation of Section 11, second paragraph, No. 3, Article II of R.A. 9165.

Accordingly, this Court sentenced J-Ar Pasay y Vocal to suffer the indeterminate penalty of imprisonment of Twelve (12) Years and One (1) Day as minimum to Fourteen (14) Years as maximum and to pay a Fine in the amount of Three Hundred Thousand Pesos (P300,000.00).

The Court Officer-in-Charge is hereby directed to transmit to the Philippine Drug Enforcement Agency (PDEA) the dangerous drug subject of this case for proper disposition, destruction, and final disposal.

SO ORDERED. 8

The RTC was convinced that the prosecution was able to establish the elements of illegal possession of dangerous drugs in the present case. PO1 Isidro, the arresting officer, positively identified petitioner as the person from whom he seized a sachet of shabu as an incident to his arrest for illegal gambling. He also identified the sachet of shabu that was confiscated from petitioner. Forensic Chemist PSI Villaraza submitted reports on the laboratory examination conducted. 9

The prosecution was also able to establish the integrity of the corpus delicti and the unbroken chain of custody of the seized drug. PO1 Isidro marked the specimen with petitioner's initials at the place of arrest, and was in possession of the specimen from the time of seizure until it was turned over to PSI Villaraza. There was moral certainty that petitioner was caught in possession of a dangerous drug and that the drug seized from him is the same specimen presented as evidence against him. 10

Ruling of the CA

On appeal, the sole issue that the CA considered was whether the RTC erred when it convicted petitioner of the crime of illegal possession of dangerous drugs.

The CA found that all the elements of the crime of possession of dangerous drugs are present. Petitioner was in possession of 0.04 gram of shabu and was not authorized by law to possess it. He also consciously possessed the shabu. The RTC correctly imposed the indeterminate penalty of imprisonment ranging from twelve (12) years and one (1) day as minimum to fourteen (14) years as maximum and a fine of Php300,000.00.

Petitioner argued that the prosecution did not preserve the integrity of the seized drug, but the CA did not agree with his argument. It reasoned that noncompliance with Section 21, Article II of RA 9165 is not necessarily fatal. The prosecution was able to prove that the item seized from petitioner was the same item marked and submitted to the laboratory for examination, and the same item presented and identified in court.

Finally, the CA ruled that petitioner's warrantless arrest was valid. At the time of his arrest, petitioner was engaged in cara y cruz, a form of illegal gambling.

The dispositive portion of the CA's Decision read:

We conclude that the RTC did not err when it convicted the [petitioner] Pasay of the crime of illegal possession of dangerous drugs.

We DISMISS the appeal.

IT IS SO ORDERED. 11

Petitioner's motion for reconsideration was denied by the CA through its Resolution 12 dated 31 July 2019. The CA's denial saw no valid ground to reverse, modify, or set aside its 29 May 2019 Decision, and stated that the motion for reconsideration was filed six (6) days late.

Issues

Petitioner raises the following issues for resolution of this Court:

I. Whether the CA gravely erred in denying petitioner's motion for reconsideration despite the timeliness of filing the same.

II. Whether the CA gravely erred in affirming petitioner's conviction for the offense charged despite the illegality of his arrest and the inadmissibility of the evidence allegedly recovered from him.

III. Whether the CA gravely erred in affirming petitioner's conviction for the offense charged despite the broken chain of custody of the drugs allegedly recovered from him.

IV. Whether the CA gravely erred in affirming petitioner's conviction for the offense charged despite the failure of the seizing officer to comply with Section 21, Article II of RA 9165. 13

Ruling of the Court

The appeal is meritorious.

We first address the alleged belated filing of petitioner's motion for reconsideration before the CA. Counsel for petitioner received two (2) envelopes from the CA: the first one on 18 June 2019, and the second one on 24 June 2019. The first envelope bore this case's docket number but contained a resolution in a different case. The second envelope contained the resolution for the present case. Thus, petitioner's motion for reconsideration was timely filed as it should be counted from the receipt of the second envelope.

On to the merits of the present case: petitioner's arrest was done without a warrant. In case of a warrantless arrest, the same may be considered lawful only when it complies with any of the circumstances enumerated in Section 5, Rule 113 of the Rules of Court:

Section 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 just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances 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.

The CA ruled that petitioner's warrantless arrest was valid and referred to Section 5 (a) of Rule 113 to justify its lawfulness. We disagree. The prosecution failed to establish that an offense of illegal gambling has been committed. The police officers only saw that were several people seated at the basketball court. Faced with this fact alone, it cannot be concluded that these people were committing a crime.

Q: What is your evidence, Mr. Witness, that J-Ar Pasay was one of the persons in that place watching kara krus, what is your evidence?

A: I witnessed him, sir.

Q: Do [sic] you see him engaged in that kara krus?

A: Yes, sir.

Q: What is he actually doing in that place?

A: He was sitting in [sic] the floor of the basketball covered court, sir.

Q: Where is he facing, Mr. Witness?

A: Hindi ko po talaga sya nave-verify nuon, sir, kung saan sya nakapwesto kaya. Kaya ko lang po siya na anohan . . . kasi bumalik po siya, kaya ko po siya hinabol. Pero nuon pong magkakaharap sila, nakatalikod po sila sa amin. 14

This admission further bolsters the conclusion that, despite their claims, the police officers did not actually know whether a crime has indeed been committed, or even whether petitioner was among the alleged players. At most, petitioner was merely sitting on the floor when PO1 Isidro allegedly first saw him. Sitting on the floor with his back to the policemen and then going back to the basketball covered court, without any other overt act, is insufficient to justify a conclusion of illegal gambling. We explained the consequences of failing the overt act test relative to a warrantless arrest in Veridiano v. People15 thus:

A search incidental to a lawful arrest requires that there must first be a lawful arrest before a search is made. Otherwise stated, a lawful arrest must precede the search: "the process cannot be reversed."

xxx xxx xxx

The first kind of warrantless arrest [as described in Section 5 (a), Rule 113] is known as an in flagrante delicto arrest. The validity of this warrantless arrest requires compliance with the overt act test as explained in Cogaed:

[F]or a warrantless arrest of in flagrante delicto to be affected, "two elements must concur: (1) the person to be arrested must execute an overt act indicating that he [or she] 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."

Failure to comply with the overt act test renders an inflagrante delicto arrest constitutionally infirm. In Cogaed, the warrantless arrest was invalidated as an inflagrante delicto arrest because the accused did not exhibit an overt act within the view of the police officers suggesting that he was in possession of illegal drugs at the time he was apprehended.

Neither may petitioner's warrantless arrest be justified under Section 5 (b). The police officers had no probable cause to believe based on personal knowledge of any fact or circumstance indicating that petitioner had just committed an offense. Mere receipt of a tip of the conduct of cara y cruz does not justify petitioner's arrest.

Notably, petitioner did not question the legality of his arrest before his arraignment. Petitioner waived his right to question the legality of his arrest after entering a plea of not guilty and proceeding to trial. Be that as it may, such waiver is only confined to the defects of the arrest and not on the inadmissibility of the evidence seized during an illegal arrest. 16

As a consequence of petitioner's invalid warrantless arrest, the search incidental to petitioner's arrest is also invalid. The allegedly seized shabu was the product of an invalid search and cannot be used against petitioner.

Obviously, this is an instance of seizure of the "fruit of the poisonous tree," hence, the confiscated item is inadmissible in evidence consonant with Article III, Section 3 (2) of the 1987 Constitution, "any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding."

Without the confiscated shabu, appellant's conviction cannot be sustained based on the remaining evidence. Thus, an acquittal is warranted, despite the waiver of appellant of his right to question the illegality of his arrest by entering a plea and his active participation in the trial of the case. As earlier mentioned, the legality of an arrest affects only the jurisdiction of the court over the person of the accused. A waiver of an illegal, warrantless arrest does not carry with it a waiver of the inadmissibility of evidence seized during an illegal warrantless arrest. 17

We further observe that there is nothing in the RTC nor in the CA's narration of facts that indicate that the police officers informed petitioner of his rights, or that they asked petitioner to consent to a warrantless search. Consent to a warrantless search must be unequivocal, specific, intelligently given, and unattended by duress or coercion. Mere passive conformity or silence is insufficient. In order to determine the validity of a supposedly consented warrantless search, the totality of the attendant circumstances is considered. This includes the environment in which the consent was ostensibly given, such as the presence of coercive police procedures. 18

Petitioner also questions the prosecution's compliance with the procedure outlined in Section 21 (1), Article II of RA 9165, then in force:

SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. — The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:

(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof;

At the time of petitioner's arrest, the police officers were mandated to conduct the physical inventory and to take photographs of the seized items in the presence of petitioner, his or her counsel, a representative from the media and the DOJ, and any elected public official. The police officers in the present case admit that there was no media and DOJ representatives to witness the taking of the inventory and of the photographs. Only a barangay kagawad was present as witness. The fact that the seizure was not due to a buy-bust operation does not justify the non-compliance with the mandatory witness rule. 19

Further, the prosecution failed to establish that there was an unbroken chain of custody of the seized dangerous drug. This Court in People v. Kamad20 summarized the links that must be established in the chain of custody in a buy-bust operation, thus: first, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; second, the turnover of the illegal drug seized by the apprehending officer to the investigating officer; third, the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and fourth, the turnover and submission of the marked illegal drug seized from the forensic chemist to the court.

Upon discovering petitioner's possession of the suspected drug in the plastic sachet, PO1 Isidro immediately marked the sachet with "JVP-1" at the place of arrest. It was only at the police station that the inventory and photograph of the seized items were done in the presence of petitioner and of a Barangay Kagawad. PO1 Isidro had custody of the seized items until it was turned over to PSI Villaraza for laboratory examination. The lack of turn over to an investigating officer is a break in the chain of custody. 21 This increases the probability of substitution, alteration and tampering.

The prosecution must establish the following elements for illegal possession of dangerous drugs, as defined and penalized by Section 11, Article II of RA 9165: (1) the accused was in possession of dangerous drugs; (2) such possession was not authorized by law; and (3) the accused was freely and consciously aware of being in possession of dangerous drugs. 22 The prosecution failed to prove any of these elements. Taken together with the invalid warrantless arrest and seizure, the failure to comply with the three (3)-witness rule and the defects in the chain of custody, the prosecution failed to establish the guilt of the accused. Thus, petitioner's acquittal should issue on the ground of reasonable doubt.

WHEREFORE, premises considered, the petition for review on certiorari is GRANTED. Accordingly, the Decision dated 29 May 2019 and Resolution dated 31 July 2019 Resolution of the Court of Appeals in CA-G.R. CR-HC No. 39670 are REVERSED andSET ASIDE. Petitioner J-Ar Pasay y Vocal is hereby ACQUITTED for failure of the prosecution to prove his guilt beyond reasonable doubt. He is ordered immediately RELEASED from detention unless he is confined for another lawful cause. Let entry of final judgment be issued immediately.

The Superintendent of the New Bilibid Prison in Muntinlupa City should be furnished copy of this Resolution for its immediate implementation. Said Superintendent is ORDERED to REPORT to this Court within five (5) days from receipt of Resolution of the action that they have taken.

SO ORDERED." (Rosario, J., no part, due to his prior participation in the Court of Appeals; Inting, J., designated additional Member per Raffle dated 29 September 2021.)

By authority of the Court:

(SGD.) MISAEL DOMINGO C. BATTUNG IIIDivision Clerk of Court

Footnotes

1. Rollo, pp. 42-56; Penned by Associate Justice Nina G. Antonio-Valenzuela and concurred in by Associate Justices Ricardo R. Rosario (now an Associate Justice of this Court) and Perpetua T. Atal-Paño of the Eleventh (11th) Division, Court of Appeals, Manila.

2. Id. at 58-59.

3. Id. at 77-82; Penned by Presiding Judge Lily Ann M. Padaen.

4. Entitled "AN ACT INSTITUTING THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002, REPEALING REPUBLIC ACT NO. 6425, OTHERWISE KNOWN AS THE DANGEROUS DRUGS ACT OF 1972, AS AMENDED, PROVIDING FUNDS THEREFOR, AND FOR OTHER PURPOSES," approved on 23 January 2002.

5. Id. at 43.

6. Id.

7. Id. at 43-45.

8. Id. at 81.

9. Id. at 80-81.

10. Id.

11. Id. at 55.

12. Rollo, p. 58.

13. Rollo, pp. 18-19.

14. TSN, 28 October 2014, p. 5.

15. 810 Phil. 642 (2017), G.R. No. 200370, 07 June 2017 [Per J. Leonen]; Citations omitted.

16. Villamor v. People, 807 Phil. 894 (2017), G.R. No. 200396, 22 March 2017 [Per J. Del Castillo].

17. People v. Racho, 640 Phil. 669 (2010), G.R. No. 186529, 03 August 2010 [Per J. Nachura].

18. People v. Alberto II, G.R No. 247906, 10 February 2021 [Per J. Carandang].

19. See Villamor v. People, G.R. No. 241918 (Unsigned Resolution), 09 December 2020.

20. 624 Phil. 289 (2010), G.R. No. 174198, 19 January 2010 [Per J. Brion].

21. See People v. Remigio, 700 Phil. 452 (2012), G.R. No. 189277, 05 December 2012 [Per J. Perez].

22. People v. Tira, 474 Phil. 152 (2004), G.R. No. 139615, 28 May 2004 [Per J. Callejo, Sr.].