THIRD DIVISION
[G.R. No. 231134. July 12, 2021.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.FELIPE POGOY, JR. y TAJANLANGIT, accused-appellant.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution datedJuly 12, 2021, which reads as follows:
"G.R. No. 231134 (People of the Philippines v. Felipe Pogoy, Jr. y Tajanlangit). — On appeal 1 is the November 18, 2016 Decision 2 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 02140, affirming the September 18, 2015 Decision 3 of the Regional Trial Court (RTC), Branch 49 of Tagbilaran City in Criminal Case No. 15298. The RTC found accused-appellant Felipe Pogoy, Jr. y Tajanlangit (Pogoy) guilty beyond reasonable doubt of violating Section 5, Article II of Republic Act No. 9165 (RA 9165) or the Comprehensive Dangerous Drugs Act of 2002.
Factual Antecedents:
The Information 4 filed against Pogoy for violation of Section 5, Article II of RA 9165 reads:
That on or about the 26th day of May 2011, in the City of Tagbilaran, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully, feloniously and knowingly without any legal purpose, sell, transfer, deliver and give away One (1) heat-sealed transparent plastic sachet containing white crystalline substance with a weight of 3.9 grams to a poseur buyer for and in consideration of the amount of THIRTY FIVE THOUSAND PESOS (P35,000.00), Philippine Currency, the accused knowing fully well that the above-mentioned white crystalline substance which contains Methamphetamine Hydrochloride, is a dangerous drug and he did not have any lawful authority, permit or license to possess, sell, transfer, deliver and give way the same, to the damage and prejudice of the Republic of the Philippines.
CONTRARY TO LAW.5
Upon arraignment, Pogoy entered a plea of not guilty to the charge. 6 Thereafter, trial on the merits ensued.
Version of the Prosecution:
On May 6, 2011, at around 4 p.m., Police Officer 2 (PO2) Rolex R. Tamarra (PO2 Tamarra) received intel from a confidential asset that a certain "Jun," later identified as accused-appellant, was offering to sell a pack of shabu for P35,000.00. PO2 Tamarra relayed the information to his superior, Police Superintendent Lorenzo A. Batuan (P/Supt. Batuan), that prompted the organization of a buy-bust team. PO2 Tamarra was designated as the poseur-buyer, PO2 Elmer Reyes (PO2 Reyes) as evidence custodian, while the rest of the team served as back-up. 7 PO2 Tamarra was given P35,000.00, out of which two P500.00 bills were marked with the initials "RT." 8 The team also prepared the pre-operation report 9 and coordination form. 10
After the briefing, PO2 Tamarra and the confidential asset proceeded to the target area in the Tagbilaran City pier, where accused-appellant and his two other companions were located. Upon arrival thereat, Pogoy and the asset agreed to proceed to the house of a certain Bulldog to continue the transaction. 11 cTDaEH
Inside Bulldog's house, the asset asked to test the quality of the shabu. When the asset confirmed that it was "good," accused-appellant gave him one pack of shabu. This was handed over to PO2 Tamarra, who in return gave the P35,000.00 to Pogoy. After the exchange, PO2 Tamarra executed the pre-arranged signal of sending a missed call to the cellular phone of P/Supt. Batuan. Thereafter, the back-up team, who were on standby outside the house, rushed inside. PO2 Tamarra introduced himself as a police officer and a search was conducted on the person of the accused-appellant and his companions. Specifically, PO2 Reyes conducted a search on the person of Pogoy, from whom he was able to recover the marked money, a lighter, and a cellular phone. 12
After Pogoy and his companions were arrested and apprised of their offense and constitutional rights, they were taken to the Bohol Police Provincial Office at Camp Dagohoy, Tagbilaran City. 13 Upon arrival at the police station, PO2 Tamarra prepared the certificate of inventory 14 signed by P/Supt. Batuan, media representative Manolito H. Maestrado (Maestrado), Barangay Kagawad Martin R. Balbin (Balbin), and a PDEA representative from the Philippine Drug Enforcement Agency, Intelligence Officer I Chona Otara (Otara). Photographs 15 of the seized items were likewise taken.
Afterwards, PO2 Tamarra delivered the seized sachets of shabu to the Bohol Provincial Crime Laboratory, which were received by Senior Police Officer 2 Andres Garcia. 16 Police Chief Inspector Pinky Sayson Acog, the forensic chemist in charge, performed a qualitative examination on the specimens 17 and found them positive for the presence of methamphetamine hydrochloride, as evidenced by Chemistry Report No. D-88-2011. 18
Version of the Defense:
In his Counter-Affidavit, 19 Pogoy stated that he and his companion, Silvestre Baguio (Baguio), agreed to buy P1,000.00 worth of shabu, which they intended to use during the fiesta celebration of Barangay Ilijora, Inabanga, Bohol. Since Baguio was from Cebu and unfamiliar with the city, he requested Pogoy to accompany him in going to Tagbilaran City. On board a motorcycle driven by Lito Otar, they proceeded to the seaport area, where they intended to buy shabu from Sherwin Bautista (Bautista). Upon arrival thereat, Bautista told Pogoy and his companions to follow him to a friend's house. 20
When they arrived at the house of one named "Bulldog," they engaged in a pot session. After a few minutes, two men in civilian clothes later identified as PO2 Tamarra and PO2 Reyes forcibly barged into the house and apprehended the accused-appellant and his two companions. Since the police officers were armed, they did not resist arrest. Meanwhile, the police officers did not arrest Bautista and "Bulldog." 21
Pogoy claimed that there was no legitimate buy-bust operation that took place. He denied that shabu and P35,000.00 were recovered from him. In fact, he only saw the sachets of shabu when they were brought to Camp Dagohoy. He also claimed that two P500.00 bills were taken from his wallet during the search. 22
Another defense witness, Alfredo Estillore (Estillore), testified 23 that he knew Pogoy since they lived in the same neighborhood. He stated that accused-appellant had good standing in their community. However, Estillore did not know of the whereabouts of Pogoy on the date of the alleged commission of the crime since they were not together that day. 24
On the other hand, Edrik Reyes or "Bulldog" (Reyes) testified 25 that on the night of the said incident, his friend, Bautista, visited his house with Pogoy and the latter's two companions. Corroborating Pogoy's narrative, Reyes testified that they were having a pot session when PO2 Tamarra and PO2 Reyes suddenly forced the door open and barged into his house. Before he ran to his room, he saw Pogoy and his companions being arrested. 26
Ruling of the Regional Trial Court:
In its September 18, 2015 Decision, 27 the RTC found Pogoy guilty beyond reasonable doubt of the crime charged. It held that the prosecution sufficiently established the elements of illegal sale of dangerous drugs. It explained that the testimonies of the police officers were worthy of credence in proving that Pogoy sold the shabu to PO3 Tamarra in exchange for P35,000.00. Due to the absence of any ill motive on the part of the arresting officers, the RTC upheld the presumption of regularity in the performance of their duties. It also found that the corpus delicti of the crime was certainly and conclusively established. 28
As to Pogoy's defense, the trial court deemed it absurd and unworthy of belief. It noted that the quantity of shabu recovered from accused-appellant negates their allegation that it was only for their personal use and consumption. 29
The dispositive portion of the Decision reads:
WHEREFORE, on the basis of all the foregoing, the Court finds accused FELIPE POGOY, JR. y TAJANLANGIT GUILTY beyond reasonable doubt of the crime of violation of Section 5 of R.A. 9165 (drug pushing) as charged and hereby sentences him to suffer LIFE IMPRISONMENT and to pay a fine of P500,000.00.
The three (3) sachets of shabu involved in this case are ordered transmitted to the PDEA for proper disposition.
SO ORDERED. 30
Aggrieved, Pogoy appealed 31 the judgment of conviction before the CA. He argued that the trial court erred in finding that he was the source of sachets of shabu allegedly received by PO2 Tamarra. He pointed out that when PO2 Tamarra testified, he stated that it was the asset who handed him the shabu. Furthermore, he contended that the arresting officers did not comply with Section 21 of RA 9165. He claimed that PO2 Tamarra did not state where and when he marked the pack of shabu. He also argued that the prosecution failed to prove whether the accused-appellant or his representative, representatives from the media and Department of Justice (DOJ), and the barangay official were present during the marking of the seized item. Consequently, the chain of custody was not preserved. 32 cSaATC
Additionally, Pogoy claimed that PO2 Tamarra gave inconsistent testimonies, rendering his testimony highly questionable. Contrary to the trial court's findings, accused-appellant averred that the amount of shabu recovered is not conclusive evidence to prove that he was the one who sold the illegal drugs. 33
On the other hand, the People, through the Office of Solicitor General (OSG), maintained that the prosecution proved Pogoy's guilt beyond reasonable doubt. It explained that the elements necessary to convict accused-appellant for illegal sale of drugs were sufficiently established. It claimed that the testimonies of the prosecution witnesses consistently and corroboratively proved the sequence of events on how the buy-bust operation was conducted. Moreover, it pointed out that accused-appellant did not present any evidence to contradict the presumption of regularity in the performance of the police officers' duties. Consequently, the positive declarations of the prosecution witnesses outweigh accused-appellant's defense of denial. 34
As to preservation of the identity and integrity of the seized drug, the OSG contended that the testimonies of the prosecution witnesses reveal that there was no significant break in the chain of custody. It argued that the prosecution was able to establish the four links in the chain of custody, from the time of seizure and marking of the seized drug until its presentation in court. 35
Ruling of the Court of Appeals
In its Decision 36 dated November 18, 2016, the CA affirmed the RTC's ruling and found accused-appellant guilty beyond reasonable doubt.
The dispositive portion of the Decision reads:
WHEREFORE, the appeal is DENIED. The Decision dated September 18, 2015 finding Accused-Appellant Felipe Pogoy, Jr. y Tajanlangit GUILTY beyond reasonable doubt of Violation of Section 5, Article II of RA 9165 is AFFIRMED.
SO ORDERED. 37
Aggrieved, Pogoy elevated 38 the case before Us and raised the same issues brought before the CA.
Our Ruling
We find the appeal meritorious.
To convict the accused of the crime of illegal sale of dangerous drugs under Section 5, Article II of RA 9165, the following must be proven: (1) the identity of the buyer and the seller, the object of the sale and the consideration; and (2) the delivery of the thing sold and its payment. 39 What is material is proof that the sale actually transpired, coupled with the presentation in court of the corpus delicti as evidence. 40 In buy-bust operations, the delivery of the illicit drug to the poseur-buyer and the receipt of the marked money by the seller consummate the illegal sale of dangerous drugs. 41
In the case at hand, the testimonies of the police officers sufficiently established that during the buy-bust operation, Pogoy sold shabu to PO2 Tamarra in exchange for P35,000.00. 42 Pogoy's receipt of the marked money consummated the crime as charged. It bears no effect that it was the asset, Bautista, who handed the illegal drug to PO2 Tamarra. Records show that it was Pogoy who handed the shabu to the asset, who in turn handed it over to PO2 Tamarra. Moreover, Pogoy, and not the asset, received the marked money. Thus, PO2 Tamarra testified as follows:
Q: Now after the shabu was given for [testing] who [was] the person who [tested] the shabu?
A: The asset [tested] and then the asset said that it [was] good.
Q: After the asset found that it [was] good, what [happened] next?
A: The asset asked where is the other shabu sir (sic).
Q: What?
A: Then the asset asked to (sic) the accused, sir, then the accused asked also to (sic) Silvestre Baguio where is the one (1) big pack shabu.
Q: Now who actually [gave] the pack of shabu to the asset?
A: The accused sir Felipe Pogoy.
Q: [He gave] the one (1) pack of shabu to the asset?
A: Yes sir.
Q: How many packs?
A: Only one (1) pack sir.
Q: You said it was buy-bust operation [after] giving of the pack of shabu, what [happened] next?
A: The asset [gave] the big pack of shabu sir to me and in return I [gave] the P35,000.00 to the accused sir.
Q: To Felipe Pogoy?
A: Yes sir. 43
However, We note that the prosecution failed to establish the four links in the chain of custody: "1) the seizure and marking, [immediately after seizure] if practicable, of the illegal drug recovered from the accused by the apprehending officer; (2) the turnover of the illegal drug seized by the apprehending officer to the investigating officer; (3) the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and (4) the turnover and submission of the seized and marked illegal drug from the forensic chemist to the court." 44 cHDAIS
In the case at bar, the prosecution failed to establish the very first link in the chain of custody, which requires that the marking of the seized drug be done immediately after confiscation and in the presence of the accused. 45 It is essential that the seized items be immediately marked since the succeeding handlers of the seized drug will use the markings as reference. 46 However, records are bereft of any showing that the marking of the seized drug was done in the presence of accused-appellant. While PO2 Tamarra testified that he marked the seized item "BPO-1" with date "5/26/11" and his signature, 47 details as to whether it was immediately marked after confiscation and in the presence of accused-appellant are left undisclosed. Consequently, this creates a significant gap in the chain of custody, 48 where switching, planting, or contamination of evidence cannot be discounted.
Moreover, the police officers failed to observe the procedural safeguards in relation to the chain of custody under Section 21 (1), Article II of RA 9165:
(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[.]
Furthermore, Section 21 (a) of the Implementing Rules and Regulations (IRR) of RA 9165, prior to its amendment by RA 10640, 49 provides:
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[.] 50 (Emphasis supplied)
Since the alleged crime was committed in 2011, or prior to the amendment of RA 9165, the old provision of the IRR shall apply. Thus, it requires that the marking, taking of photograph, and inventory of the seized items be done in the presence of (1) the accused or the person/s from whom such items were confiscated and/or seized, or their representative or counsel; (2) a representative from the media and (3) from DOJ; and (4) any elected public official, who shall be required to sign the copies of the inventory and be given a copy thereof.
A careful review of the records shows that the marking, photographing, and inventory were not done in the presence of all the required witnesses. PO3 Tamarra even admitted the absence of the DOJ representative during his direct examination:
Q: So who were there when the inventory was conducted?
A: The media and the barangay kagawad sir.
Q: Do you know their names?
A: Yes sir. Willy Maestrado, Martin Balbin and the PDEA sir Otara.
Q: There was no representative of the DOJ?
A: None sir.
Q: Now in this certificate of inventory you have no participation in the certificate of inventory because this is signed by PCI Lorenzo Batuan?
A: Yes sir.
Q: What is your role in accomplishing this certificate of inventory?
A: As recorder sir. 51
While the Court allows substantial compliance with the procedure, the prosecution must still prove: (1) that there exists a justifiable ground for noncompliance; and (2) that the integrity and evidentiary value of the seized items are properly preserved. 52 Moreover, the prosecution must initiate acknowledging and justifying the deviations from Section 21, Article II of RA 9165. 53 On this point, We note that the prosecution did not even attempt to explain the absence of the DOJ representative during the marking, taking of photograph, and inventory of the seized items. There was also no any evidence to indicate that genuine efforts were made to secure their presence.
Additionally, media representative Maestrado testified that he was not present during the actual buy-bust operation. 54 He only arrived at the police station, where the seized items were already laid down on the table. He also clarified on cross-examination that the documents were already prepared beforehand and he was only made to affix his signature. 55 Similarly, Kagawad Balbin testified that the inventory and other documents were already prepared when he arrived at the police station, and he was only made to affix his signature. 56 He further stated that he did not see who made the entries in those documents. He also admitted he did not have personal knowledge if the items were actually taken from accused-appellant. 57 Taken altogether, We are constrained to rule that the integrity and the evidentiary value of the seized drugs were not properly preserved. ISHCcT
In conclusion, We find that the integrity and evidentiary weight of the corpus delicti of the crime have been compromised due to the prosecution's failure to 1) establish an unbroken chain of custody; and 2) acknowledge and justify the deviations from the mandated procedure under Section 21, Article II of RA 9165 and its IRR. Necessarily, accused-appellant must be acquitted.
WHEREFORE, the appeal is hereby GRANTED. The assailed November 18, 2016 Decision of the Court of Appeals in CA-G.R. CR-HC No. 02140, is REVERSED and SET ASIDE. Accused-appellant Felipe Pogoy, Jr. y Tajanlangit is 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 any other lawful cause.
Let a copy of this Resolution be furnished to the Director General of the Bureau of Corrections, Muntinlupa City, for immediate implementation. The Director General is DIRECTED to report to this Court the action he has taken within five days from receipt of this Resolution.
SO ORDERED."
By authority of the Court:
(SGD.) MISAEL DOMINGO C. BATTUNG IIIDivision Clerk of Court
Footnotes
1.Rollo, p. 84.
2.Id. at 4-10; penned by Associate Justice Edward B. Contreras and concurred in by Associate Justices Edgardo L. Delos Santos and Geraldine C. Fiel-Macaraig.
3. Records, pp. 188-194; penned by Presiding Judge Fernando G. Fuentes III.
4.Id. at 1-2.
5.Id. at 1.
6.Id. at 69.
7.Id. at 9.
8.Id. at 140.
9.Id. at 19.
10.Id. at 20.
11. TSN, July 8, 2013, pp. 23-24.
12.Id. at 25-32.
13.Id. at 33-34.
14. Records, p. 16.
15.Id. at 140.
16.Id. at 14.
17. TSN, October 24, 2012, p. 7.
18. Records, p. 15.
19.Id. at 182-183.
20.Id. at 182.
21.Id.
22.Id. at 182-183.
23. TSN, August 14, 2014, pp. 1-9.
24.Id. at 176-180.
25. TSN, July 8, 2015, pp. 1-15.
26. Records, pp. 187-189.
27.Id. at 188-194.
28.Id. at 193.
29.Id.
30.Id. at 193-194.
31.Id. at 196.
32. CA rollo, pp. 19-21.
33.Id. at 21-22.
34.Id. at 53-57.
35.Id. at 57-61.
36.Rollo, pp. 4-10.
37.Id. at 10.
38.Id. at 11.
39.People v. Ismael, 806 Phil. 21, 29 (2017).
40.People v. Baticolon, 762 Phil. 468, 475 (2015).
41.Id. citing People v. Midenilla, et al., 645 Phil. 587, 601 (2010) citing People v. Guiara, 616 Phil. 290, 302 (2009).
42. TSN, July 8, 2013, p. 15.
43.Id. at 14-15.
44.People v. Mammad, 769 Phil. 782, 790 (2015) citing People v. Salvador, 715 SCRA 617, 635 (2014).
45.People v. Gayoso, 808 Phil. 19, 32 (2017) citing People v. Alejandro, 671 Phil. 33, 47 (2011).
46.Id.
47. TSN, August 19, 2013, p. 9.
48.People v. Gayoso, supra.
49. An Act to Further 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."
50. Implementing Rules and Regulations of Republic Act No. 9165, Otherwise Known as the "Comprehensive Dangerous Drugs Act of 2002," August 30, 2002.
51. TSN, July 8, 2013, pp. 22-23.
52.People v. De Guzman, 630 Phil. 637, 649 (2010).
53.People v. Saragena, 817 Phil. 117, 144 (2017).
54. TSN, April 16, 2014, p. 10.
55.Id. at 11.
56. TSN, May 21, 2014, p. 9.
57.Id. at 10.