People v. Ali

FIRST DIVISION

[G.R. No. 250643. September 14, 2022.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.KEN COLA ALI ALIAS "TOMBOY", accused-appellant.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, First Division, issued a Resolution datedSeptember 14, 2022, which reads as follows:

"G.R. No. 250643 (People of the Philippines v. Ken Cola Ali alias "Tomboy"). — This is an appeal 1 from the July 19, 2019 Decision 2 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 01805-MIN affirming the November 17, 2017 Decision 3 of the Regional Trial Court (RTC) of Regional Trial Court (RTC) of Kidapawan City, Branch 23, in Criminal Case No. 4122-2017, finding accused-appellant Ken Cola Ali alias "Tomboy" guilty beyond reasonable doubt of violation of Section 5, Article II of Republic Act No. (RA) 9165 for Illegal Sale of Dangerous Drugs.

On April 11, 2017, accused-appellant was charged with violation of Section 5, Article II of RA 9165 docketed as Criminal Case No. 4122-2017. The accusatory portion of the Information states:

The undersigned accuses the above-named accused for Violation of Section 5, Article II of Republic Act No. 9165, as follows:

That on or about April 10, 2017, in Kidapawan City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law, willfully, unlawfully and knowingly dealt with the sale of one (1) piece transparent plastic sachet of Methamphetamine Hydrochloride otherwise known as "shabu," weighing zero point zero two four (0.024) grams, marked as "KCA" which is a dangerous drug in the amount of Five Hundred Pesos (Php500.00).

CONTRARY TO LAW. 4

Accused-appellant pleaded not guilty to the charge during the arraignment. 5

Version of the Prosecution

The prosecution presented Police Officer 2 Rhino Manahan Ramos (PO2 Ramos), Police Officer 3 Geobar Nacino Bariento (PO3 Bariento), forensic chemist Police Chief Inspector Bernard Ramilo Paray (PCI Paray), and evidence custodian Senior Police Officer 3 Moises S. Abril (SPO3 Abril), as witnesses. Their testimonies tended to establish the following: cSaATC

On April 10, 2017, Senior Police Officer 1 Rogelio Tarnate Ybañez, Jr. (SPO1 Ybañez), the Chief Intel-Operative of Philippine National Police Kidapawan City, called for a briefing at 10:00 a.m. regarding an anti-illegal drugs operation against one alias "Tomboy" pursuant to a report of a confidential asset. 6 The operation was coordinated with the Philippine Drug Enforcement Agency and scheduled at 11:30 a.m. on the same day 7 with the buy-bust team being led by SPO1 Ybañez and PO2 Ramos as the poseur-buyer and apprehending officer. 8

SPO1 Ybañez and PO2 Ramos met with the informant where the latter described the physical appearance of accused-appellant, the intended target of the buy-bust operation. They then proceeded to the target area to meet with accused-appellant while the rest of the buy-bust team positioned themselves around the area. 9

After an hour, accused-appellant arrived at the meeting place and the informant introduced PO2 Ramos to accused-appellant as a friend who wanted to "take a score." PO2 Ramos asked accused-appellant "is this the item?" to which the latter replied "oo, panalo 'to." PO2 Ramos proceeded to give the P500.00 marked money while accused-appellant handed over a plastic sachet containing white crystalline substance suspected to be shabu. Upon receipt of the sachet, PO2 Ramos executed the pre-arranged signal that the sale was consummated. PO2 Ramos introduced himself as a police officer and arrested accused-appellant while the rest of the team arrived at the area. Accused-appellant was asked to empty her pocket and the P500.00 marked money and a small heat-sealed transparent plastic sachet containing white crystalline substance were recovered. PO2 Ramos kept the marked money and the plastic sachet he purchased from accused-appellant on his pocket while he just held on to the one recovered from accused-appellant when she emptied her pockets. 10

Upon the arrival of Kagawad Carlos B. Jangona and Eric Diga-duga Rodinas, a media representative, PO2 Ramos marked the sachet he bought from accused-appellant with "KCA," and the one produced from her pocket with "KCA-1." PO3 Bariento took photos of the items. 11 An inventory receipt was prepared and signed by accused-appellant and the witnesses. 12 Thereafter, the items were put in an envelope and remained in the custody PO2 Ramos. The team then brought accused-appellant to Kidapawan City Police Station. 13

Once at the station, PO3 Bariento, the investigator assigned to the case, prepared the request for laboratory examination 14 of the confiscated sachets suspected to be shabu. 15

Together with the request for laboratory examination, PO2 Ramos brought the confiscated items to the PNP Crime Laboratory and handed them to Senior Police Officer 1 Alvin Oribello, 16 who then turned over the specimens to PCI Paray, forensic chemist of the PNP Crime Laboratory of Kidapawan City, for examination. 17

PCI Paray conducted the test and reduced the findings in writing in Chemistry Report No. PC-D-034-2017 showing that the substance contained in the seized plastic sachets were positive for methamphetamine hydrochloride, a dangerous drug. 18

After the test, PCI Paray turned over the items to evidence custodian SPO3 Abril. 19 On September 4, 2017, SPO3 Abril presented the sachet with the marking "KCA" before the trial court; the sachet with the marking "KCA-1" being subject of another case in another sala. 20 cHDAIS

Version of the Defense

The accused-appellant presented the defenses of denial and frame-up. The defense's version of the events is as follows:

On April 10, 2017, accused-appellant was on her way to Digos but her friend Danny Bula called her to say that he wanted to pay for the items that he purchased from the week prior. They agreed to meet at a road near the slaughter house. Once at the area, police officers approached her and ordered her lie on the ground and confiscated her bag. Claiming that her bag only contained jars of peanut butter, she surmised that the police officers planted the shabu in her bag when they were searching the same. 21

Ruling of the Regional Trial Court

On November 17, 2017, the RTC found accused-appellant guilty beyond reasonable doubt of violation of Section 5, Article II of RA 9165. The RTC ruled that the prosecution sufficiently established all the elements of the crime charged and preserved the integrity of the confiscated substances by complying with the chain of custody rule. The dispositive part of the Decision states:

WHEREFORE, this court finds the accused KEN COLA ALIA alias Tomboy guilty beyond reasonable doubt for violation of Section 5, Article II of R.A. No. 9165, and she is sentenced to suffer [the] penalty of life imprisonment and a fine of Five hundred thousand pesos (Php500,000.00).

The period of her detention is considered as advances [sic] service of the sentence imposed on her.

The sachet of shabu marked as "KCA" with PC-D-034-2017 and marked during trial as Exhibit "L" weighing 0.024 grams is confiscated and shall be disposed of in accordance with the provisions of R.A. 9165.

The PDEA Provincial Office, Province of Cotabato is directed to retrieve this specimen from the Branch Clerk of Court of this court for its disposal or destruction.

No costs. EATCcI

SO ORDERED. 22

Aggrieved by the RTC's Decision, accused-appellant appealed to the CA. 23

Ruling of the Court of Appeals

On appeal, accused-appellant reiterated her claim of frame-up as evidenced by the inconsistent testimonies of the prosecution witnesses regarding the actual time of the operation and as to who was the officer who coordinated with the PDEA. She, likewise, questioned the validity of the conduct of the buy-bust operation.

On July 19, 2019, the CA sustained accused-appellant's conviction. The appellate court gave more weight to the testimony of PO2 Ramos, finding the same to be straightforward and established all the elements of the crime charged. The inconsistencies in the prosecution's case as to who coordinated with the PDEA and the actual time of the buy-bust operation are not material to the case. All told, the CA held that prosecution was able to prove all the elements of Illegal Sale of Dangerous Drugs and that the police officers were able to establish that its integrity was duly preserved. 24

Dissatisfied with the CA's Decision, accused-appellant filed the extant appeal.

In her Supplemental Brief, 25 accused-appellant questions the basis of the buy-bust operation conducted. She posits that since SPO1 Ybañez was not presented as a witness, the prosecution failed to present evidence as to the veracity of the allegation that she was involved in the sale of illegal drugs. Accused-appellant alleges that "it is incumbent upon law enforcers to show legal or reasonable justification before embarking on a buy-bust operation." 26

Our Ruling

The appeal is meritorious.

To successfully prosecute Illegal Sale of Dangerous Drugs, the following elements must be duly established: (1) the identity of the buyer and the seller, the object of the sale and its consideration; and (2) the delivery of the thing sold and the payment therefor. It is necessary to show that the sale transaction actually happened, and that the procured object is properly presented as evidence in court, and is shown to be the same drugs seized from the accused. 27

In this case, accused-appellant argues that the corpus delicti of the crime was not established, She points out that the prosecution failed to prove a valid buy-bust as it was only PO2 Ramos who took the witness stand and not SPO1 Ybañez, the officer who had contact with the informant. 28

A buy-bust operation is a form of entrapment in which the violator is caught in flagrante delicto and the police officers conducting the operation are not only authorized but duty-bound to apprehend the violator and to search him for anything that may have been part of or used in the commission of the crime. 29 In recent years, buy-bust operations have been accepted as a valid and effective mode of apprehending drug pushers. In a buy-bust operation, the idea to commit a crime originates from the offender, without anybody inducing or prodding him to commit the offense. If carried out with due regard for constitutional and legal safeguards, a buy-bust operation deserves judicial sanction. 30

To determine the validity of a buy-bust operation, the Court has consistently applied the "objective test." The "objective test" requires the details of the purported transaction during the buy-bust operation to be clearly and adequately shown, i.e., the initial contact between the poseur-buyer and the pusher, the offer to purchase the drug, and the promise or payment of the consideration, payment using the buy-bust or marked money, up to the consummation of the sale by the delivery of the illegal drug subject of the sale whether to the informant alone or the police officer. 31 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. 32 It is not enough to show that there was an exchange of money and illegal drugs. The details that led to such exchange must be clearly and adequately accounted for. Failing in which will certainly cast a doubt on the veracity of the whole buy-bust operation. 33

Here, the prosecution relied solely on the testimony of PO2 Ramos to prove the validity of the buy-bust operation. Unfortunately, a reading of his testimony failed to clearly establish the details of the purported buy-bust which would render it a valid one.

PO2 Ramos testified in this wise:

Q. While you were on duty on that specific date, April 10, 2017, can you still remember of any task that was given to you by your higher official?

A. Sometimes on April 10, 2017, SPO1 Ybañez conducted briefing to us that we will conduct an anti-illegal drug operation in our AOR [area of responsibility] and the target person is Alias Tomboy and we agreed that I will act as the poseur-buyer and at the same time apprehending officer.

xxx xxx xxx

Q. And during the briefing, was your Confidential Agent (CA) present?

A. No, sir.

Q. How did you know that there will be a buy bust operation to be conducted against Alias Tomboy?

A. After the conduct of briefing of SPO1 Ybañez, the CA called and informed us that he was able to communicate through cell phone call with Alias Tomboy.

Q. Who was the contact with the CA?

A. SPO1 Ybañez, sir.

Q. How did you know that the CA called SPO1 Ybañez?

A. He told us, sir. CAacTH

xxx xxx xxx

Q. And after the briefing was conducted, what happened next?

A. The CA of SPO1 Ybañez informed us that he was able to communicate with Alias Tomboy and they agreed that they will meet at the NIA Road, Brgy. Poblacion, Kidapawan City near the slaughter house and the subject person will sell shabu to him at around 11:20 in the morning of the same day.

Q. After you received that information from Officer Ybañez as relayed by the CA, Mr. Witness, what did you do next?

A. SPO1 Ybañez coordinates with the PDEA Regional Office 12 for the preparation of the Certificate of Coordination. And after that at around 11:30, I requested the duty desk officer to put into his record that we will conduct buy-bust operation and the target person is Alias Tomboy and we will be using Php500.00, sir.

xxx xxx xxx

Q. You left the station together with SPO1 Ybañez?

A. Yes, sir.

xxx xxx xxx

Q. Why did you proceed to Motor Pool located at Brgy. Magsaysay, Kidapawan City?

A. To meet with our CA, sir.

Q. Were you able to meet the CA?

A. Yes, sir.

Q. And then what did you talk about if any, Mr. Witness when you met the CA at Motor Pool, Magsaysay, Kidapawan City?

A. The CA told us the attire of the suspect, the appearance of the suspect and the residence of the target, sir. cEaSHC

Q. Did you discuss, Mr. Witness, as to the transaction where you meet the CA?

A. Yes, sir. In the Ninoy Aquino Road near the slaughter house.

xxx xxx xxx

Q. Upon arrival in the Ninoy Aquino Road near the slaughter house, what happened next?

A. When we arrived, our Intel-operatives were in position. And after about one (1) hour of waiting, the suspect arrived, sir.

xxx xxx xxx

Q. When you saw the person who fitted the description that was given to you by the CA, what did you do next, Mr. Witness?

A. I together with the CA have conversation with the suspect and we gave to her the Php500.00 bill with Serial No. KS708419 with marking "RR", sir.

Q. You said that you approached. Was that person standing only when you approached?

A. Yes, sir. About five to ten meters, the CA told us that she is the suspect then the transaction was conducted.

Q. When you approached, Mr. Witness, together with the CA, who approached first the target person?

A. The CA.

Q. How did the CA approach the said person?

A. The CA told the suspect that "here is my friend who wanted to take a score" and I asked her "is this the item?" and she said "yes, panalo 'to," sir.

Q. When that person, Mr. Witness, said that the item is good "panalo 'to," what did you do next?

A. I handed to her the Php500.00 bill with my left hand and she received it using her left hand and she put it in her left pocket and I personally saw that she took one (1) piece small sachet from her left side pocket and she handed it to me. When the buy-bust was consummated I gave the pre-arranged signal to my companion surrounding the slaughter house. 34

It is clear from the testimony of PO2 Ramos that he was merely assigned as the poseur-buyer and apprehending officer. The initial contact of the informant with the seller and the specifics of the deal, such as the quantity of shabu to be purchased and its price, were all relayed to him by SPO1 Ybañez, who in turn only got said information from the asset. The venue and time of the meeting were likewise set up by the informant. The fact that the important details of the deal were all set up by the informant is evident from the conversation between PO2 Ramos and the seller when the former no longer had to state what he was going to purchase and how much he was willing to buy. In fact, during the cross-examination, PO2 Ramos testified that prior to the buy-bust, the informant was the only one in communication with the suspect and the arrangement of the sale was only known to SPO1 Ybañez. He testified, viz.:

Q. Am I correct to say that before you came to the slaughter house the one who has communication with the suspect in this case was only the CA? Am I correct?

A. Yes, ma'am.

xxx xxx xxx

Q. Am I correct to say that the communication of the CA and the accused as to your pre-arrangement of the alleged sell [sic] was not communicated to you and you have no personal knowledge about that?

A. Yes, ma'am, our team leader only. 35

In cases wherein the police officer was only a poseur-buyer and without personal knowledge of the whole buy-bust operation, this Court held that the prosecution failed to pass the "objective test." It was ruled that the poseur-buyer is considered to be a delivery person and his testimony as to the material points of the buy-bust operation can only be regarded as hearsay and cannot be given weight. 36 The ruling in the case of People v. Ong, 37 as reiterated in the case of People v Hilario, 38 states:

To determine whether there was a valid entrapment or whether proper procedures were undertaken in effecting the buy-bust operation, it is incumbent upon the courts to make sure that the details of the operation are clearly and adequately laid out through relevant, material and competent evidence. For, the courts could not merely rely on but must apply with studied restraint the presumption of regularity in the performance of official duty by law enforcement agents. This presumption should not by itself prevail over the presumption of innocence and the constitutionally protected rights of the individual. It is the duty of courts to preserve the purity of their own temple from the prostitution of the criminal law through lawless enforcement. Courts should not allow themselves to be used as instruments of abuse and injustice lest innocent persons are made to suffer the unusually severe penalties for drug offenses. DcHSEa

In People v. Doria, [W]e stressed the "objective" test in buy-bust operations. We ruled that in such operations, the prosecution must present a complete picture detailing the transaction, which "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. We emphasized that the manner by which the initial contact was made, the offer to purchase the drug, the payment of the 'buy-bust' money, and the delivery of the illegal drug must be the subject of strict scrutiny by courts to insure that law-abiding citizens are not unlawfully induced to commit an offense."

In the case at bar, the prosecution evidence about the buy-bust operation is incomplete. The confidential informant who had sole knowledge of how the alleged illegal sale of shabu started and how it was perfected was not presented as a witness. His testimony was given instead by SPO1 Gonzales who had no personal knowledge of the same. On this score, SPO1 Gonzales' testimony is hearsay and possesses no probative value unless it can be shown that the same falls within the exception to the hearsay rule. To impart probative value to these hearsay statements and convict the appellant solely on this basis would be to render nugatory his constitutional right to confront the witness against him, in this case the informant, and to examine him for his truthfulness. As the prosecution failed to prove all the material details of the buy-bust operation, its claim that there was a valid entrapment of the appellants must fail. 39 (Citations omitted)

As in this case, the testimony of PO2 Ramos, alone, did not paint a complete picture of the whole buy-bust operation and it failed to satisfy the requirements needed to be established to pass the "objective test." Aside from the actual sale of the drugs, PO2 Ramos' knowledge of the operation are all second hand information from SPO1 Ybañez. He was unable to testify as to the asset's offer to purchase, accused-appellant's acceptance of such offer or willingness to sell, and the negotiation as to the amount to buy and the consideration therefor.

There being no valid buy-bust operation, the arrest of accused-appellant cannot be considered as lawful. 40 The failure to carry out a legitimate buy-bust operation rendered the warrantless arrest constitutionally infirm. Consequently, the alleged seized items from accused-appellant, in violation of her right against unreasonable searches and seizures, are considered as fruits of a poisonous tree and are inadmissible in evidence. With the inadmissibility of the evidence, conviction of accused-appellant cannot be had for the alleged illegal drugs are the very corpus delicti of the crime charged.

The right of the accused to be presumed innocent until proven guilty is a constitutionally protected right. The burden lies with the prosecution to prove the accused's guilt beyond reasonable doubt by establishing each and every element of the crime charged in the information. 41 The prosecution having failed to present a complete picture of the buy-bust operation, acquittal becomes inevitable.

WHEREFORE, the appeal is GRANTED. The assailed July 19, 2019 Decision of the Court of Appeals in CA-G.R. CR-HC No. 01805-MIN is REVERSED and SET ASIDE.

Accused-appellant Ken Cola Ali alias "Tomboy" is ACQUITTED in Criminal Case No. 4122-2017 for Illegal Sale of Dangerous Drugs based on reasonable doubt. The Court DIRECTS the Superintendent of the Correctional Institution for Women-Mindanao, Davao, to cause the immediate release of Ken Cola Ali alias "Tomboy" from custody unless she is being held for some other lawful cause, and to submit a report on the action taken hereon within five days from notice. cHECAS

Let entry of judgment be issued immediately.

SO ORDERED."

By authority of the Court:

(SGD.) LIBRADA C. BUENADivision Clerk of Court

by:

MARIA TERESA B. SIBULODeputy Division Clerk of Court

Footnotes

1. Rollo, p. 19.

2. Id. at 4-16. Penned by Associate Justice Florencio M. Mamauag, Jr. and concurred in by Associate Justices Edgardo A. Camello and Walter S. Ong.

3. CA rollo, pp. 47-52. Penned by Presiding Judge Jose T. Tabosares.

4. Records, pp. 2-3.

5. Id. at 60.

6. TSN, September 4, 2017, p. 9.

7. Id. at 8.

8. Id.

9. Id. at 12.

10. Id. at 13-17; 30-31.

11. Exhibit "K," records, p. 53.

12. Exhibit "G," records, p. 41.

13. TSN, September 4, 2017, p. 21.

14. Exhibit "I," records, p. 47.

15. Exhibit "B," records, p. 26.

16. Exhibit "H," records, p. 44.

17. Exhibit "H," records, p. 44.

18. Exhibit "J," records, p. 50.

19. Exhibit "H," records, p. 44.

20. TSN, September 4, 2017, pp. 4-5.

21. TSN, October 23, 2017, pp. 3-8.

22. CA rollo, p. 52.

23. Records, p. 87.

24. Rollo, pp. 4-16.

25. Id. at 32-52.

26. Id. at 34.

27. People v. Quiam, G.R. No. 239633 (Notice), February 17, 2021.

28. Rollo, pp. 33-34.

29. People v. Miraflor, G.R. No. 233532 (Notice), March 15, 2021.

30. Tan v. People, G.R. No. 232611 (Resolution), April 26, 2021.

31. Id.

32. People v. Balderama, Jr., G.R. No. 229044 (Notice), November 9, 2020.

33. Tan v. People, supra.

34. TSN, September 4, 2017, pp. 8-9 and 12-15.

35. Id. at 26-27.

36. People v. Ong, 476 Phil. 553, 571-573 (2004).

37. Id.

38. 823 Phil. 580 (2018).

39. Id. at 597-598.

40. Remo v. People, G.R. No. 239249 (Notice), September 28, 2020.

41. People v. Claudel, G.R. No. 219852, April 3, 2019.