THE PEOPLE OF THE
Appellee,
[Formerly
G.R. No. 161678]
Present:
-
versus - QUISUMBING, J.,
Chairperson,
CARPIO,
CARPIO
MORALES,
TINGA, and
VELASCO, JR., JJ.
GERARDO ORTEZA,
Appellant.
Promulgated:
x---------------------------------------------------------------------------x
Tinga,
J.:
Gerardo Orteza was charged before
the Regional Trial Court of Tarlac City, Branch 64, with illegal sale of shabu in violation of Section 5, Article II of
Republic Act No. 9165[1] (R.A. No.
9165). The Information dated
INFORMATION
The undersigned
Assistant Provincial Prosecutor (detailed), upon his inquest investigation,
accuses GERARDO ORTEZA y Orteza, a resident of Block
9, San Nicolas, Tarlac City and presently detained at
Camp Macabulos, Tarlac City
of the crime of Violation of Section 5, Article II of Republic Act 9165,
(Dangerous Drug of 2002), committed as follows:
That on November 19,
2002, at around 9:00 o’clock in the evening, at Tarlac
City and within the jurisdiction of this Honorable Court, accused, did then and
there willfully, unlawfully and criminally sell, dispense and deliver .063 gram
of Methamphetamine Hydrochloride, known as Shabu, a
dangerous drug, to poseur buyer SPO1 Rodolfo Ramos for P100.00, without
being authorized by law.
CONTRARY
TO LAW.[2]
Upon arraignment, appellant entered a plea
of not guilty.[3]
During trial, the prosecution adopted
the Joint Affidavit of Arrest[4]
dated
According to the Joint Affidavit, a
team comprised of the above-mentioned police officers was formed to conduct a
buy-bust operation at Block 9, San Nicolas,
The team with its back-up arrived at
the place at around P100.00) from Buboy. Then, SPO1 Ramos gave the pre-arranged signal.
Immediately, the rest of the team rushed to the scene and placed the two (2)
suspects under arrest. After a body search, the marked money was recovered from
Buboy and another sachet of shabu
was confiscated from Leng Leng.
Thereafter, the suspects were brought to
Later upon examination, Engr. Marcene Agala
of the Regional Crime Laboratory,
As lone witness for the defense, appellant testified that on
After trial, the trial court rendered
a Decision[10]
dated
WHEREFORE, premises above considered finding the
guilt of the accused proven beyond reasonable doubt by the Prosecution for
violation of Section 5, Article II of Republic Act [No.] 9165, this Court
sentences Gerardo Orteza y Orteza
to [a] penalty of life imprisonment to
death and a fine ranging from Ph[P]500,000.00 to Ph[P]10,000,000.00 cost
against the accused.
SO ORDERED.[11]
The judgment of
conviction was elevated to the Court for automatic review. In a Resolution[12]
dated
Before the Court of Appeals, appellant
argued that the trial court erred: (1) in giving credence to the testimonies of
the prosecution witnesses; and (2) in finding him guilty of violating Section
5, Article II of R.A. No. 9165. [15]
Except for some modifications, the
Court of Appeals in a Decision[16]
dated
WHEREFORE, in light of the
foregoing premises, the decision appealed from is hereby AFFIRMED save for a modification in
the imposed penalty which is now fixed at life imprisonment and a fine of P500,000.00.
SO ORDERED.[17]
The Court of Appeals held that the
requisites of the crime of illegal sale of prohibited drugs were borne out by
the evidence on record. The identity of appellant as the seller was established
by the positive testimonies of the members of the buy-bust team; the test
conducted on the crystalline substance sold by appellant showed that it was
positive for shabu; third, the exchange
between the poseur-buyer and appellant was for a consideration and in fact the
marked money was recovered from appellant when a body search was conducted on
his person.[18]
Although the poseur-buyer was not
presented in court, the appellate court ruled that the unswerving and
compatible testimonies of the two members of the buy-bust team, who were
eyewitness to the transaction, sufficed to pin down appellant.[19]
Against these positive declarations,
appellant only professed bare denials which cannot sway judgment when
unsupported, the appellate court noted.[20]
The Court of Appeals however modified
the penalty imposed considering the trial court’s failure to specify the actual
penalty to be suffered by appellant and the amount of fine he was supposed to
pay. Instead, it sentenced appellant to suffer the penalty of life imprisonment
and pay a fine of P500,000.00.[21]
Appellant is now before the Court reiterating
his contention that the prosecution was not able to establish with moral
certainty the actual
transaction or sale of shabu as a fact. He
maintains that the non-presentation of the poseur-buyer is fatal to this case
as the two police officers who testified were, by their own admission, located
at a distance and could not hear the alleged conversation between appellant and
the poseur-buyer.[22]
Through his Manifestation (In Lieu of Supplementary Brief) dated
There is merit in the appeal.
The Constitution mandates that an
accused shall be presumed innocent until the contrary is proven beyond
reasonable doubt. It is the burden of the prosecution to overcome such
presumption of innocence by presenting the quantum of evidence required. Corollarily, the prosecution must rest on its own merits
and must not rely on the weakness of the defense. In fact, if the prosecution
fails to meet the required quantum of evidence, the defense may logically not
even present evidence in its own behalf. In which case, the presumption of
innocence shall prevail and hence, the accused shall be acquitted. However,
once the presumption of innocence is overcome, the defense bears the burden of
evidence to show reasonable doubt as to the guilt of the accused. Reasonable
doubt is that doubt engendered by an investigation of the whole proof and an
inability after such investigation to let the mind rest each upon the certainty
of guilt. Absolute certainty of guilt is not demanded by the law to convict a
criminal charge, but moral certainty is required as to every proposition of
proof requisite to constitute the offense.[26]
In a prosecution for illegal sale of
dangerous drugs, the following must be proven: (1) that the transaction or sale
took place; (2) the corpus delicti or the
illicit drug was presented as evidence; and (3) that the buyer and seller were
identified. [27]
What is material is the proof that the
transaction or sale actually took place, coupled with the presentation in court
of the prohibited or regulated drug. The delivery of the contraband to the
poseur-buyer and the receipt of the marked money consummate the buy-bust
transaction between the entrapping officers and the accused.[28]
The Court believes that the prosecution
was not able to establish with certainty all the elements necessary for the
conviction of appellant for illegal sale of shabu.
First,
there appears nothing in the records showing that police officers complied with
the proper procedure in the custody of seized drugs as specified in People
v. Lim,[29]
i.e., any apprehending team having
initial control of said drugs and/or paraphernalia should, immediately after
seizure or confiscation, have the same physically inventoried and photographed
in the presence of the accused, if there be any, and or his representative, who
shall be required to sign the copies of the inventory and be given a copy
thereof. The failure of the agents to comply with the requirement raises doubt
whether what was submitted for laboratory examination and presented in court
was actually recovered from appellant. It negates the presumption that official
duties have been regularly performed by the police officers.
In
People v. Laxa,[30] where
the buy-bust team failed to mark the confiscated marijuana immediately after
the apprehension of the accused, the Court held that the deviation from the
standard procedure in anti-narcotics operations produced doubts as to the
origins of the marijuana. Consequently, the Court concluded that the
prosecution failed to establish the identity of the corpus delicti.
The
Court made a similar ruling in People v. Kimura,[31] where
the Narcom operatives failed to place markings on the
seized marijuana at the time the accused was arrested and to observe the
procedure and take custody of the drug.
More recently, in Zarraga v.
People,[32]
the Court held that the material inconsistencies with regard to when and where
the markings on the shabu were made and the
lack of inventory on the seized drugs created reasonable doubt as to the
identity of the corpus delicti. The Court thus
acquitted the accused due to the prosecution’s failure to indubitably show the
identity of the shabu.
Significantly, Engr.
Agala, the chemical engineer who conducted the
laboratory test on the two (2) sachets, testified in part as follows:
ON CROSS-EXAMINATION
BY ATTY. ABRENICA
x x
x x
Q - Likewise,
you did not conduct the fingerprint examination to find out or dusting of
fingerprint on these sachets to find out if these indeed were handled by the
accused Gerardo Orteza, correct?
A - Yes,
ma’am.[33]
Secondly, the Court observes that the prosecution
did not present the poseur-buyer who had personal knowledge of the transaction.
In People v. Uy,[34]
the Court ruled that the non-presentation of the poseur-buyer is fatal only if
there is no other eyewitness to the illicit transaction. This doctrine was
reiterated in People v. Ambrosio.[35] In both cases, however, not only were there
other eyewitnesses to the illegal sale, the non-presentation of the
poseur-buyer was also satisfactorily explained. In People v. Uy, the police officer who acted as the poseur-buyer at
the time of the trial was paralyzed and confined in a hospital due to gunshot
wounds. In People v. Ambrosio, the
poseur-buyer was working on another buy-bust operation. The Court therein
stated that to require her to testify in open court would divulge her identity
and expose her to danger considering that there was another buy-bust operation
going on.
In this case, though, after the poseur-buyer,
SPO1 Ramos, failed to appear in court despite having been subpoenaed six (6)
times,[36]
the prosecution did not even bother to offer any explanation for his
non-appearance considering that he, a police officer, was no different from the
other witnesses who were presented in the end by the prosecution. In Ramos’s
place, the prosecution presented two other police officers, who although members
of the back-up team of the buy-bust operation were, in the Court’s view, not
reliable eyewitnesses to the transaction. Pertinently, PO2 Lagasca
feebly testified as follows:
ON
CROSS-EXAMINATION BY
ATTY.
ABRENICA- Counsel for the Accused
Q – Mr. Witness, this is your first time to see
the accused [sic]?
A – No, ma’am.
Q – What do you mean no[?]
[H]ave you seen him before?
A – Yes, ma’am.
Q – Did you conduct surveillance on him, Mr.
Witness?
A – Yes, ma’am.
Q – Then you could have easily gotten a search
warrant or a warrant of arrest for him[,] isn’t it[?] [O]r
you did not, did you, Mr.
Witness?
A – Buy-bust operation, ma’am.
Q – Prior to this, you have not arrest [sic]
the accused, is that correct?
A– Not yet, ma’am.
Q – Do you know SPO1 Rodolfo Lindo Ramos?
A – Yes, ma’am.
Q – And you are the back-up in this incident or
his arrest[,]
Mr. Witness, or you are the poseur-buyer?
A – I was the back-up, ma’am.
Q – So as a back-up, you positioned yourself at
a place where you will not be seen
by the accused, correct?
A – We can see then, ma’am.
Q – But he cannot see you?
A – Yes, ma’am.
Q – And it was Lindo
Ramos who acted as a poseur buyer?
A – Yes, ma’am.
Q – Now it was only when this Lindo Ramos gave a pre- arranged signal that you approached the
accused, is that correct?
A – Yes, ma’am.
Q – So from a distance you can only see the
signal, what was that signal, Mr. Witness?
A – By waving his right hand, ma’am.
Q – So you cannot
hear or what they were talking about, is that correct?
A – Yes, ma’am.[37]
Moreover, the testimonies of the two
police officers did not include any positive face-to-face identification in
open court of appellant as the seller of shabu,
an aspect which was crucial to establish appellant’s role in the alleged
transaction. It is likewise unclear in the Joint Affidavit of Arrest, which was
adopted by the two police officers as their direct testimony, whether the two
had a clear and close view of the alleged sale of shabu
to support the assertion that they were eyewitnesses to it. The affidavit only stated
that the back-up
men “who were then placed in a strategically [sic] position near the vicinity
are watching the on going deal.”[38]
As such, the testimony of the poseur-buyer, in this case Ramos, was pivotal as
only he could testify on what had really transpired during the moment of the
alleged sale of shabu. His non-presentation in
this case was fatal, absent any explanation for his non-appearance and reliable
eyewitness who could testify in his place.
Another befuddling point was the
non-prosecution of Leng Leng
for the same crime. It was testified that both he and appellant
participated in the illegal sale
but records were silent as to why he was not indicted for the crime especially since
the amount of shabu mentioned in the information
was the total sum of the shabu found in the
two (2) sachets recovered from the scene, one from appellant and the other one from Leng
Leng.[39]
In addition, no proof of conspiracy was adduced to hold appellant liable for
the sale of both sachets. In fact, the second sachet was never sold as it was
confiscated from Leng Leng
after a body search. While Section
5, Article II, R.A.
No. 9165 prohibits and penalizes the illegal sale of shabu
regardless of the amount, the paucity of evidence on these material points engender
reasonable doubt on the credibility of the prosecution’s theory.
All told, the totality of the evidence
presented in the instant case did not support appellant’s conviction for
violation of Section 5, Article II, R.A. No. 9165, since the prosecution failed
to prove beyond reasonable doubt all the elements of the offense. Accordingly, the
presumption of innocence should prevail and the exoneration of appellant declared
as a matter of right.
WHEREFORE, the Decision dated 29
October 2003 of the Regional Trial Court of Tarlac
City, Branch 64 in Criminal Case No. 12420 is REVERSED and SET ASIDE. Appellant
GERARDO ORTEZA y ORTEZA is
ACQUITTED of the crime charged on the ground of reasonable doubt and ordered
immediately RELEASED from custody, unless he is being held for some other
lawful cause.
The
Director of the Bureau of Corrections is ORDERED to implement this Decision
forthwith and to INFORM this Court, within five (5) days from receipt hereof,
of the date appellant was actually released from confinement. Costs de oficio.
SO ORDERED.
DANTE O. TINGA
Associate Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
ANTONIO T. CARPIO CONCHITA CARPIO MORALES
Associate
Justice
Associate Justice
PRESBITERO J. VELASCO,
JR.
Associate Justice
ATTESTATION
I attest that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the
writer of the opinion of the Court’s Division.
LEONARDO A. QUISUMBING
Associate Justice
Chairperson, Second Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution,
and the Division Chairperson’s Attestation, it is hereby certified that the
conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court’s Division.
REYNATO S. PUNO
Chief Justice