People v. Nudo y Diana

FIRST DIVISION

[G.R. No. 247977. September 14, 2020.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ERWIN NUDO y DIANA, accused-appellant.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, First Division, issued a Resolution dated September 14, 2020 which reads as follows:

"G.R. No. 247977 — People of the Philippines v. Erwin Nudo y Diana

Erwin Nudo y Diana (appellant) appeals the September 26, 2018 Decision 1 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 09445, which sustained appellant's conviction for violation of Section (Sec.) 5, 1st paragraph, Article II of Republic Act (R.A.) No. 9165 or "The Comprehensive Dangerous Drugs Act of 2002."

The case stems from an Information charging appellant, as follows:

That, on or about the 2nd day of March, 2015, in the Municipality of Pateros, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law, did then and there willfully, unlawfully and knowingly sell, deliver and give away to PO2 Orly Cerdino, poseur-buyer, in consideration of the amount of Php100.00, one (1) heat-sealed transparent plastic sachet containing 0.028 gram of white crystalline substance, after the corresponding examination by the PNP Southern Police District Crime Laboratory Office was found positive to the test for Methamphetamine Hydrochloride, also known as shabu, a dangerous drug, in violation of the above-cited law.

CONTRARY TO LAW. 2

The prosecution's version was summarized by the CA, as follows:

At around 10:00 o'clock in the evening of March 1, 2015, PO2 Orly Cerdino (PO2 Cerdino) received information from a concerned citizen regarding [appellant's] rampant sale and use of illegal drugs along Tiamsik Street, Barangay Tabacalera, Municipality of Pateros.

Upon receipt of the information, P/Insp. Boy Navia (P/Insp. Navia) immediately conducted a briefing in preparation for the buy-bust operation against [appellant]. x x x PO2 Cerdino was designated as the poseur-buyer with PO2 Mark Ocfemia (PO2 Ocfemia) as immediate back-up. P/Insp. Navia gave PO2 Cerdino a One Hundred Peso (P100) bill as the marked money.

When the conduct of the briefing of the operation was finalized, PO2 Cerdino and PO2 Ocfemia proceeded to the target area. However, [appellant] was not there; thus, the team returned to the police station. The team then talked to the confidential asset regarding the buy-bust operation that will be conducted against [appellant].

[T]he next day, at around 10:00 o'clock in the morning, the confidential informant returned to the police station and reported that [appellant] was actually seen selling drugs at the target area. The police officers again hatched a plan to conduct a buy-bust operation against [appellant]. They agreed that the pre-arranged signal is the removal of PO2 Cerdino's cap.

Thereafter, the team proceeded to the target area. Upon reaching Tiamsik Street, the confidential informant saw and approached [appellant]. The confidential informant told [appellant], "Pakuha ng Piso," to which the latter replied, "Piso lang, nagmamadali ka pa." PO2 Cerdino gave [appellant] the P100.00 marked money and, in return, the latter immediately took a plastic sachet containing white crystalline substance and gave it to the former. x x x PO2 Cerdino executed the pre-arranged signal, introduced himself as a police officer, and accosted [appellant]. However, [appellant] attempted to flee. A chase ensued until [appellant] jumped into a river which was about 15 meters away from the target area. [Appellant] was eventually apprehended with the assistance of other police operatives. PO2 Cerdino recovered the marked money from [appellant] and marked the sachet containing white crystalline substance with the initials "END," which stands for Erwin Nudo y Diana, the name of [appellant]. The operatives marked the items subject of the transactions at the place of arrest. Thereafter, the police brought [appellant] to the nearest barangay hall and conducted the inventory. The inventory was witnessed by Barangay Kagawad Rizaldy Saligumba x x x. Photographs were taken inside the barangay hall. The team then proceeded to the police station and prepared the documents needed for filing the case, i.e., affidavit of arrest, request for laboratory examination, request for drug test, the chain of custody form and the spot report. Both PO2 Cerdino and PO1 Elmer Tallud (PO1 Tallud) brought [appellant], the seized sachet containing white crystalline substance and the requests for drug test and laboratory examination to the Southern Police District Crime Laboratory. PCI Abraham Verde Tecson (PCI Tecson) the forensic chemist, conducted a laboratory examination on the specimen. The white crystalline substance turned out to be methamphetamine hydrochloride or otherwise known as shabu, a dangerous drug. 3

Appellant interposed the defense of denial and the following version, summarized by the CA:

x x x On March 2, 2015, at around 10:30 in the morning, [appellant] was having breakfast at the corner of Tiamsik Street in Barangay Tabacalera, Pateros City, when suddenly PO2 Ocfemia arrived on board a motorcycle; that PO2 Ocfemia, while holding his gun, called him; that thinking that PO2 Ocfemia might shoot him and not knowing that the armed man was a police officer, he immediately ran away; that PO2 Ocfemia fired his gun, but failed to hit him; that fearing for his life, he surrendered himself to PO2 Ocfemia and the latter brought him to the police station where he first saw the alleged shabu; that PO2 Ocfemia asked him to point at the shabu, but he refused as he firmly believed that it did not belong to him; and that thereafter, he was brought to the inquest prosecutor, who then immediately filed a complaint against him. [Appellant] further testified that during that time, he never saw PO2 Cerdino; and that he did not file a case against PO2 Ocfemia as he was afraid that the latter might retaliate. 4

After trial, the Regional Trial Court (RTC) of Pasig City, Branch 262, Pateros, Metro Manila, rendered judgment finding appellant guilty beyond reasonable doubt of the offense charged in a May 3, 2017 Decision, 5 the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, the Court finds accused Erwin Nudo y Diana alias "Batchoy" GUILTY beyond reasonable doubt for Violation of Section 5, 1st paragraph, Article II of Republic Act No. 9165, otherwise known as "The Comprehensive Drugs Act of 2002," and is hereby sentenced to suffer the penalty of life imprisonment without eligibility for parole and to pay the fine of Php500,000.00.

The Branch Clerk of this Court is directed to prepare the Mittimus for the immediate transfer of accused Erwin Nudo y Diana alias "Batchoy" to the New Bilibid Prisons (NBP), Bureau of Corrections in Muntinlupa City, Metro Manila.

The shabu confiscated from the accused are (sic) hereby confiscated in favor of the Government and the Branch Clerk of this Court is directed to cause its transmittal to the Philippine Drugs (sic) Enforcement Agency (PDEA), 2nd floor, PDEA Bldg., NIA Northside Road, Pinyahan, Quezon City.

SO ORDERED. 6

On September 26, 2018, the CA affirmed appellant's conviction through the presently appealed Decision, 7 disposing:

WHEREFORE, the instant appeal is DENIED.

The May 3, 2017 Decision of the Regional Trial Court, Branch 262, Pateros, Metro Manila in Criminal Case No. 20025-D finding accused-appellant Erwin Nudo y Diana guilty beyond reasonable doubt for illegally selling dangerous drugs punishable under Section 5, 1st paragraph, Article II of R.A. No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, is AFFIRMED in toto.

SO ORDERED. 8

Aggrieved, appellant filed a Notice of Appeal 9 dated October 17, 2018. The appellant and the Office of the Solicitor General each manifested, respectively, on October 17, 2019 10 and October 23, 2019 11 that they are adopting the same arguments contained in their appellate briefs. We, thus, resolve anew the principal issue of whether or not appellant Erwin Nudo y Diana's guilt, for violation of Sec. 5, Article II of R.A. No. 9165, was proven beyond reasonable doubt.

There is merit in the appeal.

Indeed, Sec. 21, Article II of R.A. No. 9165, providing the procedure to be followed by a buy-bust team in the seizure, initial custody, and handling of confiscated illegal drugs and/or paraphernalia, was amended by R.A. No. 10640, 12 imposing less stringent requirements in the procedure. As it now stands:

The apprehending team having initial custody and control of the dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and confiscation, conduct a physical inventory of the seized items 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, with an elected public official and a representative of the National Prosecution Service or the media 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, finally, That noncompliance of 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 and custody over said items." 13

In this regard, we have "emphasized that the justifiable ground for non-compliance must be proven as a fact, because the Court cannot presume what these grounds are or that they even exist." 14

The circumstances of the arrest in this case, however, and the compliance by the arresting officers with Section 21, Article II of RA 9165, as amended, 15 leave much to be desired. According to the CA, the integrity and evidentiary value of the seized sachet of shabu was duly preserved, even as it acknowledged that neither a representative from the media nor from the Department of Justice witnessed the inventory of the seized evidence. Recall that the inventory was only witnessed by a barangay kagawad, falling short of the minimum two disinterested witnesses required, apart from the accused and/or accused's representative and the arresting officer or officers. The signature of the accused or accused's representative also does not appear in the inventory. 16 Scouring through the records, no attempt was made by the prosecution to show any effort to obtain the presence of the required witnesses, much less explain why this requirement was not met, given that the buy-bust transaction was supposedly conceived the night before the arrest.

Even if we were to consider the narration that appellant fled the target area and was pursued before the arrest to possibly explain why the arrest and alleged marking of the evidence at the place of arrest had none of the requisite witnesses, there was simply no attempt to secure their presence at the point of sale. Furthermore, according to PO2 Cerdino, they proceeded to the barangay hall immediately after the arrest, where Kagawad Saligumba witnessed the inventory before the appellant and the evidence were brought to the police station for investigation, documentation and (again) preparation of the inventory. 17 The same kagawad, on the other hand, testified that the inventory was merely presented for his signature at the barangay hall, during which, pictures of the evidence were taken. 18 The latter's partially contradictory testimony begs the question of whether the trip to the barangay hall came first or the trip to the police station. It also renders doubtful where the inventory was undertaken.

We disagree with the CA that what it perceives as minor deviations do not diminish the integrity and evidentiary value of the allegedly seized sachet of shabu. "The illegal drug itself constitutes the corpus delicti of the offense. Its existence must be proved beyond reasonable doubt." 19 Here, the failure of the prosecution to disclose justifiable cause for non-compliance with the witnesses requirement causes reasonable doubt on the integrity and evidentiary value of the sachet of shabu allegedly sold by appellant.

To recapitulate, the presence of the three (3) insulating witnesses must be secured and complied with at the time of the warrantless arrest, such that they are required to be at or at least near the intended place of the arrest, and accordingly be ready to witness the inventory and photographing of the seized items "immediately after seizure and confiscation." This is the necessary interpretation of Section 21 if the purpose of the law, which is to insulate the accused from abuse, is to be achieved. 20

Finally, the identity of the purported buyer in the alleged sale of shabu was also not duly established; thus, there is reasonable doubt over whether or not appellant was arrested in the course of a buy-bust operation. From the prosecution's evidence itself, appellant allegedly took the hundred peso bill from PO2 Cerdino and immediately handed over the sachet of shabu to the latter, without so much as a feigned introduction from the confidential informant. 21 It is doubtful that anyone would sell contraband to a stranger. The prosecution failed to convincingly establish that appellant sold a sachet of shabu to PO2 Cerdino. For this reason, the prosecution failed to discharge its burden that the illegal transaction even took place.

WHEREFORE, considering the foregoing, the present appeal is GRANTED. Accordingly, appellant Erwin Nudo y Diana is ACQUITTED on reasonable doubt of the offense charged and subject of this appeal. Consequently, appellant's IMMEDIATE RELEASE is in order, unless appellant is confined for any other lawful cause.

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. Penned by Associate Justice Henri Jean Paul B. Inting (now a member of this Court), with Associate Justices Japar B. Dimaampao and Manuel M. Barrios, concurring; rollo, pp. 3-24.

2. CA rollo, p. 53.

3.Rollo, pp. 4-6.

4.Id. at 6-7.

5. CA rollo, pp. 53-65.

6.Id. at 64.

7.Supra note 1.

8.Rollo, p. 24.

9.Id. at 26-27.

10.Id. at 41-43.

11.Id. at 46-47.

12. 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 July 15, 2014.

13. Sec. 21 (1) of R.A. No. 10640.

14.People v. Patricia Cabrellos, G.R. No. 229826, July 30, 2018; emphasis and underscoring in the original.

15.Supra note 13.

16. CA rollo, p. 44.

17.Id. at 45, citing TSN, April 6, 2016, pp. 7-9.

18.Id. at 55.

19.People v. Lahmodin Ameril y Abdul, G.R. No. 222192, March 13, 2019.

20.People v. Richael Luna y Torsilino, G.R. No. 219164, March 21, 2018.

21.Id.