FIRST DIVISION
[G.R. No. 240225. December 2, 2020.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs. NOEL BERMEJO y AGI, NESTOR FORTUNO y FLORES, LEONARDO GARCIA y BRIONES, AND DENNIS CABRERA y JIMENEZ, accused,
NOEL BERMEJO y AGI, accused-appellant.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution dated December 2, 2020which reads as follows:
"G.R. No. 240225 (People of the Philippines,Plaintiff-Appellee,v. Noel Bermejo y Agi, Nestor Fortuno y Flores, Leonardo Garcia y Briones, And Dennis Cabrera y Jimenez,Accused, Noel Bermejo y Agi,Accused-Appellant). — Before this Court is an appeal of the Decision 1 dated 19 January 2018 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 07627 finding accused-appellant Noel Bermejo y Agi (Bermejo) guilty of violating Sections 5 and 11 of Republic Act No. (RA) 9165 or the Comprehensive Dangerous Drugs Act of 2002. This Decision affirmed the Decision dated 17 June 2015 of Branch 65, Regional Trial Court (RTC) of Makati City in Criminal Case Nos. 13-2304 to 13-2309. 2
Antecedents
Separate Informations for violation of Article II, Sections 5, 11, 13 and 14 of RA 9165 were filed against Bermejo and the other accused, Nestor F. Fortuno, Leonardo B. Garcia, and Dennis J. Cabrera. Those pertaining to Bermejo were subsequently docketed as Criminal Case Nos. 13-2304 and 13-2305, thus:
Criminal Case No. 13-2304:
On the 14th day of October 2013, in the city of Makati, the Philippines, accused, without the necessary license or prescription and without being authorized by law, did then and there willfully, unlawfully and feloniously sell, deliver and give away zero point one five [0.15] gram of white crystalline substance containing Methamphetamine Hydrochloride (Shabu), a dangerous drug, in consideration of Php500.
CONTRARY TO LAW. 3
Criminal Case No. 13-2305:
On the 14th day of October 2013, in the city of Makati, the Philippines, accused, without the necessary license or prescription and without being authorized by law, did then and there willfully, unlawfully and feloniously have in his custody and possession white crystalline substance weighing a total of zero point seven two [0.72] gram containing Methamphetamine Hydrochloride (Shabu), dangerous drug.
CONTRARY TO LAW. 4
Bermejo pleaded not guilty to both offenses. Thus, trial ensued, and the cases were tried jointly. 5
Version of the Prosecution
The prosecution alleged that on 14 October 2013, the Makati City Police Station Anti-Illegal Drugs Special Operation Task Group (SAID-SOTG) mobilized a buy-bust operation based on a tip from a confidential informant that a certain alias "Noli," later on identified as Bermejo, was peddling illegal drugs. The members of the buy-bust team included PO1 Mark Angulo (PO1 Angulo), who was designated as poseur-buyer, together with PO2 Marvin Garcia (PO2 Garcia), SPO1 Randy Obedoza (SPO1 Obedoza), and SPO1 Cesar Ramirez (SPO1 Ramirez) who were assigned as back-up operatives. The team allegedly coordinated with the Philippine Drug Enforcement Agency (PDEA). 6
Upon arrival at the target area, the informant and PO1 Angulo approached Bermejo. PO1 Angulo was introduced as a prospective buyer needing P500.00 worth of shabu. Bermejo asked for payment first, prompting PO1 Angulo to give him the marked money. Bermejo then took out a small plastic sachet allegedly containing shabu and handed it to PO1 Angulo. The latter then executed the pre-arranged signal and the other operatives immediately came out to arrest Bermejo. The latter resisted arrest and was able to run inside the house where the other accused were having a "pot session." PO1 Angulo arrested Bermejo inside the house and the other accused were also placed under arrest. When subjected to search, the police operatives obtained from Bermejo two (2) additional plastic sachets containing suspected shabu and the marked money. Meanwhile, the search on the other accused also yielded specimens of shabu and other drug paraphernalia. 7
After being informed of their constitutional rights, Bermejo and the other accused were first brought to a barangay hall but the barangay officials were not available. They were then transferred to the SAID-SOTG Office at the Makati City Hall Building, where PO1 Angulo marked and inventoried the confiscated items in the presence of Barangay Chairman Michael Tolentino. Meanwhile, SPO1 Obedoza was taking photographs of the proceedings. The accused and the seized items were then brought to the Philippine National Police (PNP) Crime Laboratory for drug testing and examination. SPO1 Nildo Orsua (SPO1 Orsua), the assigned police investigator, prepared the investigation report and the request for laboratory examination. The forensic examination was done by Police Senior Inspector Ofelia Vallejo (PSI Vallejo). The seized items were found to be positive for methamphetamine hydrochloride, a dangerous drug. 8
Version of the Defense
Bermejo maintained that he was innocent and claimed that on the day of their alleged arrest, he and the other accused were having a drinking spree when five (5) male individuals came out of a vehicle and invited them to go to the barangay hall because someone allegedly filed a complaint against them. They agreed, but instead bringing them to the barangay hall, they were taken to the SAID-SOTG Office and were now being accused of the crimes charged against them. According to Bermejo, the pieces of evidence used against them during trial were first shown to them at the SAID-SOTG Office. 9
Ruling of the RTC
After trial, the RTC rendered judgment finding Bermejo guilty of the crimes charged against him. The decretal portion of the RTC's decision, insofar as it affected Bermejo, states:
WHEREFORE, in view of the foregoing, judgment is hereby rendered as follows:
1. In Criminal Case No. 13-2304, the court finds the accused, Noel Bermejo y Agi, GUILTY beyond reasonable doubt of the crime of violation of Section 5, Article II, R.A. No. 9165 and sentences him to suffer the penalty of life imprisonment and to pay a fine of Five Hundred Thousand Pesos (P500,000.00).
2. In Criminal Case Nos. 13-2305-07, the court finds the accused, Noel Bermejo y Agi, Leonardo Garcia y Briones and Dennis Cabrera y Jimenez, GUILTY beyond reasonable doubt of the crimes of violation of Section 11, Article II, R.A. No. 9165 and sentences each of them to suffer the penalty of imprisonment of twelve (12) years and one (1) day, as minimum, to fourteen (14) years and eight (8) months, as maximum, and to pay a fine of Three Hundred Thousand Pesos (P300,000.00).
xxx xxx xxx
The period of detention of the accused should be given full credit.
Let the dangerous drugs subject matter of these cases be disposed of in the manner provided for by law.
The Branch Clerk of Court is directed to transmit the plastic sachets containing shabu and drug paraphernalia subject matter of these cases to the PDEA for said agency's appropriate disposition.
SO ORDERED. 10
Aggrieved, Bermejo appealed to the CA, assigning the following errors on the part of the RTC:
I.
THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF POSSESSION AND SALE OF DANGEROUS DRUGS DESPITE THE ARRESTING OFFICERS' NON-COMPLIANCE WITH THE PROVISIONS OF SEC. 21, ARTICLE II OF RA NO. 9165, THEREBY FAILING TO ESTABLISH THE IDENTITY AND INTEGRITY OF THE ALLEGED SEIZED DRUGS.
II.
THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF POSSESSION AND SALE OF DANGEROUS DRUGS DESPITE THE BROKEN CHAIN OF CUSTODY OF THE ALLEGED SEIZED DRUGS.
III.
THE TRIAL COURT GRAVELY ERRED IN DISREGARDING THE ACCUSED-APPELLANT'S DEFENSE OF DENIAL AND FRAME-UP. 11
It appears that the other accused appealed their conviction. However, the CA issued a Resolution 12 dismissing their appeal considering that they have outstanding warrants of arrest issued by the RTC subsequent to their judgment of conviction. The CA explained that they have no legal standing to seek affirmative relief on appeal while avoiding their arrest. 13
Ruling of the CA
The CA affirmed Bermejo's conviction, in the assailed Decision, the dispositive portion of which reads:
WHEREFORE, premises considered, the instant appeal is DISMISSED. The Decision dated 17 June 2015 of the Regional Trial Court (RTC), Branch 65, Makati City, in Criminal Case Nos. 13-2304 to 05, convicting accused-appellant Noel Bermejo y Agi of illegal sale and possession of shabu in violation of Sections 5 and 11, Article II of Republic Act No. 9165, is hereby AFFIRMED in toto. Costs against accused-appellant.
IT IS SO ORDERED. 14
The CA ruled that the prosecution was able to establish the existence of the elements of illegal sale and illegal possession of dangerous drugs. 15
Anent the police operatives' failure to observe Section 21 (a), Article II of the Implementing Rules and Regulations (IRR) of RA 9165 during the buy-bust operation, the CA held that the same was excused because there was justifiable reason for their non-compliance and the evidentiary value of the seized items remained intact. It explained that the marking, inventory and photograph-taking of the seized drugs were done in the SAID-SOTG Office for security reasons. Moreover, the testimonial and documentary evidence presented supported the conclusion that the seized drug was preserved through an unbroken chain of custody. 16
Finally, the CA did not give credence to Bermejo's defenses of denial and frame-up. In the appellate court's view, Bermejo failed to substantiate his allegations of ill-motive on the part of the police operatives to falsely implicate him. Thus, the presumption that the police officers performed their duty regularly should be sustained. 17
Bent on proving his innocence, Bermejo filed the present appeal.
Issues
In his appellant's brief, Bermejo argued that the police officers' deviations from the procedures laid down in RA 9165 cast doubt on the integrity of the seized drugs. Moreover, there must be justification for such deviations, which the prosecution failed to provide. 18 Bermejo also argued that by failing to give a detailed and specific account on how the seized drug was handled after their alleged arrest, the prosecution was not able to prove an unbroken chain of custody. 19 Finally, Bermejo asserted that his defenses of denial and frame-up should not have been brushed aside easily. He claimed that these were the only defenses he really had but it does not automatically mean that these were untrue. Moreover, it was the prosecution that had the duty to prove his guilt with moral certainty. 20
Ruling of the Court
The appeal has merit.
In every successful prosecution for violations of RA 9165, whether it be for illegal sale or illegal possession of dangerous drugs, the presentation of the seized drugs as evidence in court is indispensable because the drugs so seized are the corpus delicti of the crime. As such, the State should establish beyond reasonable doubt the identity of the dangerous drugs by showing that the drugs offered in court as evidence were the same items bought or obtained from the accused's person during the buy-bust operation. To ensure that this is so, the law requires that the movement of the seized drugs from the time of confiscation until presentation in court is safeguarded. RA 9165 lays down the rules on the chain of custody of seized illegal drugs is to remove unnecessary doubts concerning the identity of the evidence. 21
As an integral part of the chain of custody procedure, RA 9165 requires that the marking, physical inventory, and photography of the seized items be conducted immediately after the seizure and confiscation of the same. The law further requires that the inventory and photography be done in the presence of the accused or the person from whom the items were seized, or his representative or counsel, as well these required witnesses: (a) if prior to the amendment of RA 9165 by RA 10640, 22 "a representative from the media AND the Department of Justice (DOJ), and any elected public official"; or (b) if after the amendment of RA 9165 by RA 10640, "[a] elected public official and a representative of the National Prosecution Service OR the media." These witnesses were required by law specifically "to ensure the establishment of the chain of custody and remove any suspicion of switching, planting, or contamination of evidence." 23
The incident subject of charges against Bermejo happened on 14 October 2013, or prior to the effectivity of RA 10640. 24 Section 21 of RA 9165, as further threshed out by Section 21 (a) of Article II of its IRR, 25 require that immediately after seizure and confiscation of the suspected drug the same should be physically inventoried and photographed in the presence of the following witnesses: (a) the accused or person/s from whom the items were seized and confiscated, or his representative or counsel; (b) a representative from the media AND the Department of Justice (DOJ); and (c) any elected public official.
In the case at bar, the marking, inventory, and photography of the seized items were not conducted immediately at the place of the seizure and arrest. In fact, the seized drugs had to be transferred to two (2) locations before it could be processed at the SAID-SOTG Office. While this misstep may be excused pursuant to Section 21 (a) of the IRR, 26 the prosecution nonetheless failed to establish the crucial presence of ALL witnesses required by RA 9165. As PO1 Angulo himself admitted during his cross-examination, only an elected official was present during the marking, inventory, and photograph-taking:
Q: Mr. Witness, who informed Punong Barangay Michael Tolentino about this case, if you know?
A: I don't know, sir.
Q: And where did you manage to conduct the inventory of the items seized in connection to this case?
A: SAID-SOTG office, sir.
Q: Was there any representative from the DOJ at the time of the conduct of the inventory?
A: None, sir.
MISSING PAGE 9
and sincere desire to secure the presence of the required witnesses. The prosecution must show that earnest efforts were employed in contacting the witnesses enumerated in the law. Mere statements of unavailability, absent actual serious attempts to contact the required witnesses, would not suffice to justify non-compliance. Moreover, police officers must not only to state the reasons for their non-compliance, they must convince the Court that they exerted earnest efforts to comply with the mandated procedures and that, under the given circumstances, their actions were reasonable. 33
The records are bereft of any justification by the arresting team for their procedural lapses. The prosecution witnesses did not provide any acknowledgment or explanation for the lack of DOJ and media representatives. No statements given if they took earnest steps to obtain the presence of the required witnesses. An excerpt from the joint affidavit of PO1 Angulo, PO2 Garcia, SPO1 Ramirez, and SPO1 Obedoza reads:
For security reasons, WE decided to convey arrested suspects as well as the seized pieces of evidence at the Brgy. Hall of Brgy. Pinagkaisahan for inventory and presentation purposes but due to inavailability [sic.] of any Brgy. Officials we facilitated Brgy. Chairman TOLENTINO AND WAS agreed that the inventory be conducted at the SAID-SOTG Office at the 8th Floor, Makati City Hall Bldg. 11, wherein we the undersigned caused the procedural preservations, markings and inventory on described pieces of evidence in the very presence of arrested suspects and Brgy. Chairman MICHAEL TOLENTINO of Barangay Pinagkaisahan to stand witness, this event was properly documented by SPO1 RANDY OBEDOSA. 34
Under the foregoing circumstances, the Court finds that the prosecution failed to prove Bermejo's guilt beyond reasonable doubt. Consequently, We have no choice but to overturn his conviction and rule for his acquittal.
Once again, We implore our police and law enforcement bodies to strictly adhere to the prescribed procedures under RA 9165 and its IRR. The Court will not tolerate non-compliance, especially when the subject specimen is of miniscule quantity where the probability of planting, tampering, or contaminating evidence is amplified. 35
WHEREFORE, the present appeal is hereby GRANTED. The Decision dated 19 January 2018 of the CA in CA-G.R. CR-HC No. 07627 finding accused-appellant NOEL BERMEJO y AGI guilty beyond reasonable doubt of violating Sections 5 and 11, Article II of RA 9165 is REVERSED and SET ASIDE. Accused-appellant is hereby ACQUITTED on the ground of reasonable doubt. He is ORDERED IMMEDIATELY RELEASED from detention, unless he is detained for some other lawful cause. Let an entry of judgment be issued immediately.
The Court DIRECTS the Director of the Bureau of Corrections to implement the immediate release of NOEL BERMEJO y AGI, and to report on their compliance within ten (10) days from receipt.
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, pp. 128-145; penned by Associate Justice Socorro B. Inting, and concurred in by Associate Justice Apolinario D. Bruselas, Jr., and Rafael Antonio M. Santos of the Thirteenth Division, Court of Appeals, Manila.
2.Id. at 18.
3.Id. at 3-4.
4.Id. at 4.
5.Id.
6.Id. at 4-5.
7.Id. at 5-6.
8.Id. at 6.
9.Id. at 7.
10.Id. at 7-8.
11.Id. at 9.
12. CA rollo, pp. 48-49; penned by Associate Justice Socorro B. Inting and concurred CA Associate Justices Remedios Salazar-Fernando and Priscilla J. Baltazar-Padilla (who was a Member of this Court) of the Second Division, Court of Appeals, Manila.
13.Id.
14.Rollo, p. 18.
15.Id. at 11-12.
16.Id. at 13-16.
17.Id. at 16-17.
18.Id. at 71-74.
19.Id. at 75-78.
20.Id. at 78-79.
21.People v. Angngao, G.R. No. 189296, 11 March 2015, 755 Phil. 597, 612 (2015) [Per Justice Bersamin]; see also People v. Ruiz, G.R. No. 243635, 27 November 2019 [Per Justice Carandang].
22.An Act to Further Strengthen the Anti-Drug Campaign of the Government, Amending for the Purpose Section 21 of Republic Act No. 9165, Otherwise Known as the "Comprehensive Dangerous Drugs Act of 2002," approved on 15 July 2014.
23.People v. Bangalan y Mamba, G.R. No. 232249, 03 September 2018 [Per Justice Perlas-Bernabe].
24. In People v. Gutierrez (G.R. No. 236304, 05 November 2018 [Per Justice Perlas-Bernabe]), this Court noted that RA 10640 was approved on 15 July 2014, and published on 23 July 2014 in The Philippine Star (Vol. XXVIII, No. 359, Metro Section, p. 21) and the Manila Bulletin (Vol. 499, No. 23, World News Section, p. 6). Thus, it became effective 15 days thereafter or on 07 August 2014, pursuant to Section 5 of the law. See also People v. Bangalan y Mamba, supra.
25. SECTION 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: (a) The apprehending officer/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: Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items; x x x.
26.Id.
27. Note from the Publisher: Copied verbatim from the official document. Missing Footnote Reference and Footnote Text.
28. Note from the Publisher: Copied verbatim from the official document. Missing Footnote Reference and Footnote Text.
29. Note from the Publisher: Copied verbatim from the official document. Missing Footnote Reference and Footnote Text.
30. Note from the Publisher: Copied verbatim from the official document. Missing Footnote Reference and Footnote Text.
31. Note from the Publisher: Copied verbatim from the official document. Missing Footnote Reference and Footnote Text.
32. Note from the Publisher: Copied verbatim from the official document. Missing Footnote Reference and Footnote Text.
33.Ramos v. People, G.R. No. 233572, 30 July 2018 [Per Justice Perlas-Bernabe].
34. CA rollo, page 110.
35.Veriño v. People, G.R. No. 225710, 19 June 2019 [Per Justice Leonen].