People v. Mercado y Mora

SECOND DIVISION

[G.R. No. 245245. September 2, 2019.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.PROSPERO MERCADO y MORA A.K.A. "BOYING", accused-appellant.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, Second Division, issued a Resolution dated02 September 2019which reads as follows:

"G.R. No. 245245 (The People of the Philippines v. Prospero Mercado y Mora a.k.a. "Boying")

Appellant Prospero Mercado y Mora a.k.a. "Boying" assails the Court of Appeal's Decision dated January 12, 2018, CA-G.R. CR-HC No. 06890, 1 which affirms his conviction for violations of Sections 5 and 11 of Republic Act 9165 (RA 9165).

The Facts and the Plea

Appellant was charged with violations of Sections 5, 11 and 12 of Article II of RA 9165, for the sale of 26.663 grams of cannabis sativa or marijuana, for possession of two hundred eighty eight (288) heat-sealed transparent plastic sachets of dried marijuana weighing a total of 415.972 grams and two (2) bricks of marijuana fruiting tops weighing a total of 1,988.1 grams and for possession of drug paraphernalia.

On arraignment, appellant pleaded "not guilty" to all the charges.

PO3 Eric Dollete, PO2 Rico Mantes, PO2 Michael Oasnon, PO2 Marvin Minola, PO2 Norman Aquino and P/Insp. Arlyn Cañete testified for the prosecution while appellant was the sole witness for the defense.

Prosecution's Version:

After prior surveillance, Police Chief Inspector Preston K. Bagangan of the PNP-Zambales Police Provincial Office, Anti-Illegal Drugs Special Operations Task Group directed his men to conduct a buy-bust operation against appellant, whose name was included on the watch list of suspected drug traders. The target area was Barangay Lipay-Dingin-Panibuatan, Iba, Zambales. The buy-bust team included PO3 Dollete as poseur-buyer, the confidential informant, and PO2 Rico Mantes and PO2 Michael Oasnon as arresting officers. PO3 Dollete was provided with three (3) pieces of P100.00 peso bills as buy-bust money, each piece marked "ERD." After coordination with the Philippine Drug Enforcement Agency (PDEA), the buy bust team, including the confidential informant proceeded to the target area, on May 15, 2012, around 5:30 in the afternoon. 2

PO3 Dollete and the confidential informant arrived at the gate of the Mercado Compound, while the rest of the team strategically positioned themselves close by. When appellant came out of the compound where he lived, PO3 Dollete and the confidential informant approached him. After a brief conversation, the confidential informant introduced PO3 Dollete as the buyer. 3

PO3 Dollete then gave the marked money to appellant who in turn handed him ten (10) heat-sealed transparent plastic sachets containing what PO3 Dollete suspected were dried marijuana fruiting tops. PO3 Dollete closely examined the sachets and confirmed the items were marijuana. Thereupon, he removed his sunglasses, signaling that the transaction had been completed. Acting on cue, PO3 Mantes and PO2 Oasnon moved to close in. But seeing them approach, appellant ran away back into the compound. 4

Meantime, PO3 Mantes and PO2 Oasnon lost no time and pursued appellant all the way up until the second floor of his house. There, they caught him in the act of stashing away two hundred eighty-eight (288) sachets of what appeared to be marijuana, all laid on the table. The operatives identified themselves as police officers, arrested appellant, and apprised him of his constitutional rights. A search on appellant's person yielded the three (3) pre-marked P100.00 peso bills. Too, PO2 Oasnon discovered two (2) marijuana bricks on the side of the table as well as other drug paraphernalia. 5

Meantime, PO3 Dollete and the confidential informant had left the area where the sale took place to protect the identity of the informant right after the chase began. PO3 Dollete secured the plastic sachets in his pocket and proceeded to Camp Conrado D. Yap. Back to PO3 Mantes and PO2 Oasnon, they brought appellant and the seized items also to Camp Conrado D. Yap. There, the confiscated items, together with the ten plastic sachets sold to PO3 Dollete were inventoried and marked in the presence of appellant, a barangay official and the representatives from the Department of Justice and media, respectively. The ten plastic sachets subject of the sale seized were marked by PO3 Dollete with "ERD1" to "ERD10," the two hundred eighty eight (288) plastic sachets recovered by PO3 Mantes, with "REM1" to "REM 288", and the two (2) bricks of marijuana were marked by PO2 Oasnon "MCO1" and "MCO2." 6

The marking of the items was also photographed in the presence of appellant himself, and the three (3) aforementioned representatives. PO3 Dollete, PO3 Mantes, and PO2 Oasnon turned over the items to the investigating officer, PO2 Minola. In turn, PO2 Minola personally delivered the items, together with the request for laboratory examination to PO2 Aquino of the Zambales Provincial Crime Laboratory Office. It was PO2 Aquino who turned in the items to forensic chemist P/Insp. Arlyn Cañete who subjected the same to a qualitative examination. On the basis of the results, per Chemistry Report No. D-042-2012 ZPCLO, P/Insp. Cañete confirmed that the items were positive for cannabissativaor marijuana, a dangerous drug. 7

Defense's Version

Appellant invoked denial and frame-up.

He averred that on May 15, 2012, around 1:30 in the afternoon, he just got home from a fiesta when two (2) men pushed him against a wall and poked a gun at him. He was handcuffed and brought to Camp Conrado D. Yap. There, his photograph was taken. He was directed to point to some items alleged to be marijuana laid on top of a table. 8

The Trial Court's Ruling:

By Decision dated April 8, 2014, 9 the trial court found appellant guilty of violations of Sections 5 (illegal sale) and 11 (illegal possession) of Article II of RA 9165; and not guilty of violation of Section 12 of the same law, thus:

IN VIEW THEREOF, accused PROSPERO MERCADO y MORA is found GUILTY beyond reasonable doubt in Criminal Case No. RTC 6858-1 and is sentenced to suffer the penalty of life imprisonment and to pay a fine of Php10,000,000.00.

Accused Mercado is also found GUILTY beyond reasonable doubt in Criminal Case No. RTC 6859-1, and is sentenced to suffer the penalty of life imprisonment and to pay a fine of Php10,000,000.00.

However, in Criminal Case No. RTC 6860-1, accused Mercado is ACQUITTED on ground of reasonable doubt.

The ten (10) heat-sealed transparent plastic sachets of dried marijuana fruiting tops with markings "ERD1", "ERD2", " ERD3", "ERD4", "ERD5", "ERD6", "ERD7", "ERD8", "ERD9" and "ERD10" with total weight of 26.663 grams (Criminal Case No. RTC 6858-1), the two hundred eighty eight (288) heat-sealed transparent plastic sachets with markings "REM1", "REM2", "REM3", "REM4", "REM5" to "REM288" with a total weight of 415.972 grams, two (2) bricks of marijuana fruiting tops with markings "MCO1" and "MCO2" with a total weight of 1,988.10 grams (Criminal Case No. RTC 6859-1), four (4) bundles of unused plastic repacker with markings "MCO4", two (2) disposable lighters (black and yellow green in color) with markings "MCO5", one (1) box of "Commando" match with markings "MCO6", four (4) pieces of used candles with markings "MCO7", three (3) assorted scissors with markings "MCO8" and thirty-two (32) pieces rolling papers with markings (sic) "MCO8" (Criminal Case No. RTC 6860-1) are confiscated in favor of the government.

SO ORDERED. 10

The trial court found that the police officers who conducted the buy-bust operation substantially complied with the requirements under Section 21 of RA 9165. Further, the integrity of the ten (10) plastic sachets containing marijuana fruiting tops was shown to have been preserved as established by PO3 Dollete, the poseur buyer who had actual custody of these items. He testified that the marking and inventory by investigating officer PO3 Misola were done in Camp Conrado D. Yap in order to protect the identity of the informant. Thereafter, photographs of the seized items were also taken. Then, the seized items were turned over by PO2 Aquino to forensic chemist P/Insp. Cañete for laboratory examination. The same yielded positive results which tested positive for cannabissativa or marijuana. These items were the same ones presented in court during trial. 11

The same degree of care and preservation was done to ensure the integrity of the two hundred eighty-eight (288) pieces of plastic sachets and the two (2) bricks of dried marijuana leaves recovered by PO3 Mantes and PO1 Oasnon from appellant's possession inside the second floor of his house. 12

Lastly, the trial court ruled that the discovery and eventual confiscation of the two hundred eighty-eight (288) plastic sachets and two (2) bricks of marijuana from appellant was incidental to a lawful arrest, thus, can be used against him by virtue of the plain view doctrine. 13

The Court of Appeals' Ruling

On appeal, appellant faulted the trial court for concluding that he failed to present convincing exculpatory evidence; crediting the arresting officers with the presumption of regularity in the performance of their official duty; and sustaining the admission in evidence of the seized dangerous drugs despite violation of the chain of custody rule. 14

In response, the Office of the Solicitor General (OSG) essentially reiterates its arguments before the trial court. It adds though that the issue of non-presentation of the informant as a witness being allegedly violative of appellant's right to confront the witnesses against him was raised for the first time on appeal, thus, should be rejected. In any event, the testimony of the informant, if not absolutely necessary to support a verdict of conviction, need not be presented. 15

By Decision dated January 12, 2018, 16 the Court of Appeals affirmed. It agreed with the trial court that all the elements of illegal sale and possession of dangerous drugs were proved. For the sale of dangerous drugs, PO3 Dollete testified he was the poseur-buyer who bought ten (10) plastic sachets of cannabissativa or marijuana from appellant at three hundred pesos (P300.00). PO3 Mantes and PO2 Oasnon corroborated PO3 Dollete's testimony. 17

As for illegal possession of dangerous drugs, PO3 Mantes positively narrated that in the course of chasing appellant, they ended up to the second floor of appellant's house. There, they caught appellant in the act of stashing away two hundred eighty-eight (288) plastic sachets of marijuana all laid on a table. They placed him under arrest and did a search on his person and the premises. The search yielded two (2) bricks of cannabissativa or marijuana. 18

The Court of Appeals ruled further that the prosecution proved beyond moral certainty that the specimens subject of the sale and the dangerous drugs confiscated from appellant were the identical items presented in evidence. 19

Finally, the Court of Appeals held that the appellant's constitutional right to confront witnesses against him was not violated because the informant was not presented as witness. For the informant's testimony, if at all, would only be corroborative of the testimony already given by the prosecution witnesses. 20

The Present Appeal

Appellant now implores the Court to reverse the assailed disposition of the Court of Appeals and prays anew for his acquittal. In compliance with Resolution dated April 8, 2019, 21 both the OSG and appellant manifested 22 that, in lieu of supplemental briefs, they were adopting their respective briefs before the Court of Appeals.

Ruling

The appeal must fail.

In drug related cases, the State bears the burden not only of proving the elements of the offense but also the corpus delicti itself. 23 The dangerous drugs seized from appellant and those which he sold to PO3 Dollete constitute such corpus delicti. It is thus imperative for the prosecution to establish that the identity and integrity of the dangerous drugs were duly preserved in order to support a verdict of conviction. 24 It must prove that the dangerous drugs seized from appellant are truly the substance offered in court as corpus delicti with the same unshakeable accuracy as that required to sustain a finding of guilt.

Here, the Information alleged that the twin violations are committed on May 15, 2012. The governing law, therefore, is RA 9165. Section 21 (1) thereof reads:

(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.

Section 21 (a) of the Implementing Rules and Regulations of RA 9165 complements the foregoing provision, viz.:

(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;

xxx xxx xxx

These provisions embody the chain of custody rule. It is the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage from the time of seizure/confiscation to receipt in the forensic laboratory, to safekeeping and their presentation in court for identification and destruction. This record of movements and custody shall include the identity and signature of the person who held temporary custody of the seized item, the date and time when the transfer of custody was made in the course of the item's safekeeping and use in court as evidence, and its final disposition. 25

People v. Hementiza26 reiterated that the following four (4) links in the chain of custody must be proved:

First, the seizure and marking, if practicable, of the dangerous drug recovered from the accused by the apprehending officer;

Second, the turnover of the dangerous drug seized by the apprehending officer to the investigating officer;

Third, the turnover by the investigating officer of the dangerous drug to the forensic chemist for laboratory examination; and

Fourth, the turnover and submission of the marked dangerous drug seized from the forensic chemist to the court.

We focus on the first link which appellant asserts was breached when the physical inventory and photograph were not done at the place of seizure, confiscation or arrest but elsewhere, specifically at Camp Conrado D. Yap. He, therefore, concludes that a departure from this rule constitutes a breach of the chain of custody.

The Court is not convinced. For there were attendant compelling reasons which otherwise warranted a deviation from the general rule pertaining to the place of marking, physical inventory and photograph. Consider:

First. PO3 Dollete explained that after appellant fled and the back-up team started running after him, he decided to leave the area in order to secure the confidential informant's identity. His concern was well-founded considering that with appellant's flight and the police running after him, it was naturally expected that a commotion and swarm of people closing in would shortly follow. If PO3 Dollete did not leave at once, he would be putting at risk not only the informant's identity but also the security of the items themselves.

In several cases, the Court recognized the fact that drug dealers do not look kindly upon squealers and informants hence, their cloak of confidentiality must remain intact. 27 Also, in People v. Bartolome, 28 the Court pronounced that an informant is prone to retaliation of culprits arrested through his or her efforts, thus, the need to protect him or her at all times.

Another. Since appellant already fled into the compound where he lived, how else would PO3 Dollete have marked, inventoried, or photographed the ten (10) sachets? Appellant was not there to witness it. Besides, by the time appellant had fled, he was still not arrested. So, the place where the marking, 29 physical inventory 30 and photograph 31 could have been done was still uncertain at that time precisely because appellant was yet to be apprehended.

In People v. Ga-a and Adobar, 32 the Court ruled that where the accused managed to escape despite efforts of the police to apprehend him, such act of escaping serves as a waiver of the accused right to be present during the marking, physical inventory and photographing of the drugs seized from him. As such, the prosecution was excused from complying with the requirement of Section 21 as to the presence of the accused during the initial custody requirements.

As for the two hundred eighty-eight (288) plastic sachets and two (2) bricks of cannabis sativa or marijuana, the Court holds that the following circumstances justify the decision of the police officers to do the marking, physical inventory and photograph not in appellant's own house where the seizure and arrest took place but in the safe premises of Camp Conrado D. Yap which is just 3.2 kilometers away, thus:

One. Since the operation started around 5:30 in the afternoon, the seizure of these items must have occurred a little later in the evening. Surely, appellant's house which was situated inside a compound was not a safe place for the police officers and the confiscated items to stay a minute longer especially because nighttime by then had already set in. The police officers could easily be trapped inside and a counter attack coming from appellant's neighbors and relatives in the same compound was not at all impossible.

In People v. Moner, 33 the Court considered as valid justification the buy bust team's failure to conduct the marking, inventory and photograph at the place of the arrest by reason of their unfamiliarity with the location and their genuine belief that to linger longer would expose them to security risks.

Two. The amounts of cannabis sativa or marijuana seized from the buy bust operation and the ones discovered from appellant's house were massive. Thus, the marking, inventory and photograph of the same will surely take time during which the items and the police officers themselves could have been exposed to a lot of security risks.

In Macad v. People, 34 the Court found valid the arresting officers' reasons for failing to conduct the marking of seventeen (17) enormous bricks of marijuana weighing a total of sixteen (16) kilograms at the place of arrest and seizure, viz.:

In this case, it was reasonable for the police officers not to conduct the marking immediately at the place of the arrest and seizure. Evidently, petitioner is a flight risk because he immediately ran away at the sight of SPO2 Suagen. To conduct the marking in an unsecured location may result in the escape of petitioner. Also, the seized baggage contained large quantities of marijuana. It would be impractical, if not dangerous, for merely two police officers to conduct the marking of such drugs in broad daylight and in open public, without the assistance and security of other police officers. Accordingly, it was prudent and rational for the police officers to conduct the marking in the police station. As stated earlier, PO1 Falolo and PSI Biadang were able to identify all the marked items in open court.

And unlike in People v. Que35 where the dangerous drug confiscated from the accused was of miniscule amount (0.0157 gram), here, having a total of 2,430.735 grams of marijuana on hand, it is highly improbable that the same will be subjected to planting, switching or tampering.

Section 21 (a) of the Implementing Rules and Regulations of RA 9165 specifically allows the physical inventory and photograph to be conducted at the nearest police station or at the nearest office of the apprehending officers, whichever is practicable.

In People v. Beran, 36 the Court ruled that in seizures covered by search warrants, the physical inventory and photograph must be conducted at the place where the search warrant was served. On the other hand, in case of warrantless seizures such as a buy-bust operation, the physical inventory and photography shall be done at the nearest police station or office of the apprehending officer or team, whichever is practicable.

As for the marking, though, the same should be done in the presence of the apprehended violator immediately upon confiscation. But in Palo v. People, 37 the Court affirmed a verdict of conviction despite the fact that the seized dangerous drug was only marked at the police station and that there was no physical inventory or photograph of the same, thus:

The fact that the apprehending officer marked the plastic sachet at the police station, and not at the place of seizure, did not compromise the integrity of the seized item. Jurisprudence has declared that "marking upon immediate confiscation" contemplates even marking done at the nearest police station or office of the apprehending team. Neither does the absence of a physical inventory nor the lack of photograph of the confiscated item renders the same inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items as these would be used in determining the guilt or innocence of the accused.

Here, there was compliance with the requirements provided under the foregoing provision. In addition, the police authorities who handled the buy-bust operation and the subsequent arrest even proved that the integrity and evidentiary value of the seized items had been preserved.

So must it be.

The second link pertains to the turnover of the dangerous drug seized by the apprehending officer to the investigating officer. Here, PO2 Marvin Minola, the investigating officer testified that he was the investigator on duty on May 15, 2012 when the seized items were turned over to his custody after the marking, inventory and photograph. 38

As for the third link, PO3 Dollete testified that he and PO2 Minola handed the seized items to PO2 Norman Ricky Aquino who in turn issued the request for laboratory examination and later brought the specimens to the crime laboratory. PO2 Aquino also identified the dangerous drug items presented in court as the same items he handed over to P/Insp. Cañete for laboratory examination. 39

Lastly, for the fourth link, the prosecution presented forensic chemist P/Insp. Cañete who testified that the contents of the ten (10) plastic sachets marked as "ERD1" to "ERD10", two hundred eighty eight (288) plastic sachets marked as "REM1" to "REM288", and two (2) bricks of the same specimen marked as "MCO1" and "MCO2" turned over to her by PO2 Aquino on May 15, 2012 tested positive for marijuana, a dangerous drug. 40

In sum, the prosecution was able to establish all the links in the chain of custody. Though the first link was not strictly complied with, there is, however, justifiable ground for conducting the marking, inventory and photograph to the nearby Camp Conrado D. Yap.

At any rate, the prosecution witnesses' testimonies are unwavering as they were able to clearly recount who took custody of the dangerous drugs starting from seizure up to the time the same were presented as evidence in court. Also, there is no showing of any significant lapse of time between the confiscation and the actual marking, inventory and photograph as all of these were done on the same day. Too, there was no showing that the items were even susceptible to mix up since no other buy bust operation was conducted on the same date. To repeat, the sheer volume of the seized items was unlikely to be a subject of planting or tampering.

In any case, while the chain of custody should ideally be perfect and unbroken, this is almost always impossible to obtain. 41 In this light, the Implementing Rules and Regulations of RA 9165 bears a saving clause allowing leniency whenever compelling reasons exist that would otherwise warrant deviation from the established protocol so long as the integrity and evidentiary value of the seized items are properly preserved. 42

As stated, the arresting police officers here offered a cogent, nay valid, explanation and the Court itself has noted the particular circumstances which justifies the decision to secure the items in question and do the marking, physical inventory and photograph at Camp Conrado D. Yap. In fine, the condition for the saving clause to become operational was fulfilled in this case. Verily, the proviso "as long as the integrity and the evidentiary value of the seized items are properly preserved, has come into play."

All told, the Court of Appeals did not commit reversible error when it affirmed the verdict of conviction for violation of Section 5 (illegal sale) and Section 11 (illegal possession) of RA 9165.

WHEREFORE, the appeal is DENIED and the Decision dated January 12, 2018 in CA-G.R. CR-HC No. 06890, AFFIRMED.

SO ORDERED."

Very truly yours,

MARIA LOURDES C. PERFECTODivision Clerk of Court

By:

(SGD.) TERESITA AQUINO TUAZONDeputy Division Clerk of Court

 

Footnotes

1.Rollo, pp. 3-17.

2.Id. at p. 5.

3.Id. at pp. 5-6.

4.Id. at p. 6.

5.Id.

6.Id. at p. 7.

7.Id.

8.Id. at pp. 7-8.

9. Penned by Judge Josefina D. Farrales; CA rollo, pp. 64-74.

10. CA rollo, pp. 73-74.

11.Id. at pp. 70-71.

12.Id. at p. 71.

13.Id.

14.Id. at pp. 36-62.

15.Id. at pp. 87-100.

16. Penned by Associate Justice Eduardo B. Peralta, Jr. and concurred in by Associate Justices Ricardo R. Rosario and Maria Elisa Sempio Dy; Rollo, pp. 3-17.

17.Rollo, pp. 9-10.

18.Id. at pp. 10-11.

19.Id. at pp. 11-12.

20.Id. at p. 17.

21.Id. at unnumbered page.

22.Temporary Rollo, unnumbered pages.

23.People v. Calates, G.R. No. 214759, April 4, 2018.

24.Calahi v. People, G.R. No. 195043, November 20, 2017, citing People v. Casacop, 778 Phil. 369, 376 (2016) and Zafra v. People, 686 Phil. 1095, 1105-1106 (2012).

25.People v. Diputado, G.R. No. 213922, July 5, 2017, 830 SCRA 172, 184.

26.People vs. Hementiza, 807 Phil. 1017, 1026 (2017).

27. See Quinicot v. People, 608 Phil. 259, 277 (2009).

28. 703 Phil. 148, 164 (2013).

29.Rollo, p. 7.

30. Record, pp. 15-16.

31.Id. at pp. 17-19.

32. G.R. No. 222559, June 6, 2018.

33. G.R. No. 202206, March 5, 2018.

34. G.R. No. 227366, August 1, 2018.

35. G.R. No. 212994, January 31, 2018.

36. 724 Phil. 681, 818-819 (2014).

37. 780 Phil. 681, 694-695 (2016); See also People v. Rusiana, 618 Phil. 55 (2009); People v. Resurreccion, 618 Phil. 520, 532 (2009); and People v. Gum-Oyen, 603 Phil. 665, 674-675 (2009).

38. TSN, July 15, 2013, pp. 4-5.

39. TSN, November 14, 2012, pp. 2-4.

40. TSN, July 15, 2013, pp. 2-3.

41. See Largo v. People, G.R. No. 201293, June 19, 2019.

42. See Section 21 (a), Article II of the IRR of RA 9165.