Republic
of the
Supreme Court
SECOND DIVISION
|
PEOPLE OF THE
Plaintiff, |
G.R. No. 194445
|
|
|
Present: |
|
- versus - ROGER
POSADA y URBANO and EMILY POSADA y SARMIENTO,
Accused. |
CARPIO, J.,
Chairperson, BRION PEREZ, SERENO, and REYES, JJ. Promulgated: March 12, 2012 |
x-----------------------------------------------------------------------------------------x
DECISION
REYES, J.:
As we decide this appeal involving a
couple who allegedly violated Republic
Act No. 9165 (R.A. 9165), otherwise known as the Comprehensive Dangerous Drugs Act of 2002, we should bear in
mind the words emanating from the pen of former Justice Isagani A. Cruz:
We need only add that the active support of everyone is needed to bolster the campaign of the government against the evil of drug addiction. The merchants of all prohibited drugs, from the rich and powerful syndicates to the individual street "pushers," must be hounded relentlessly and punished to the full extent of the law, subject only to the inhibitions of the Bill of Rights.[1]
The Case
Accused-appellants Roger
Posada (Roger) and Emily Posada (Emily) were convicted by the Regional Trial
Court (RTC), Branch 43, Virac, Catanduanes, in Criminal Case No. 3490 for
selling twelve (12) pieces of transparent sealed plastic sachet, containing
Methamphetamine Hydrochloride or shabu with a total weight of 0.4578 grams, in violation of
Section 5, Article II of R.A. No. 9165.[2]
Roger
was also convicted by the same RTC in Criminal Case No. 3489 for possession of
one piece of torn plastic sachet, containing residue of a crystalline substance
(allegedly shabu), a piece of small aluminum foil, a pair of small
scissors, and fifteen (15) pieces of used lighter all of which are intended
to be used for smoking or introducing dangerous drugs into the body of a
person, in violation of Section 12, Article II of R.A. No. 9165.[3]
Aggrieved
by the RTC Decision, the accused-appellants filed an appeal before the Court of
Appeals (CA) which, via a Decision[4]
dated June 17, 2010, affirmed the RTC Decision as to the accused-appellants'
conviction in Criminal Case No. 3490
but acquitted Roger in Criminal Case No. 3489 on the ground of reasonable
doubt.
Now, the accused-appellants ask this
Court for a complete exoneration from the offense charged in Criminal Case No.
3490 on the ground that the prosecution failed to establish the chain of
custody and integrity of the seized illegal items and to prove their guilt
beyond reasonable doubt.
Antecedent
Facts
According to the evidence of the
prosecution, P/CI Gil Francis Tria (P/CI Tria), the Chief of Police of Virac
Municipal Police Station and representative of the Philippine Drug Enforcement
Agency (PDEA), ordered surveillance on the activities of the accused-appellants
and a certain Johnjohn Urbano (Urbano).[5]
As a result of the said surveillance, PO1 Roldan Area (PO1 Area) was able to
buy one sachet of shabu from Emily for P250.00 on August 2, 2005.[6]
Consequently,
after the August 2, 2005 test-buy yielded positive result, P/CI Tria applied
for a search warrant, which the Honorable Jaime E. Contreras granted.[7]
Thus, at noontime of August 3, 2005, P/CI Tria and his team proceeded to Barangay Concepcion and coordinated with
Punong Barangay Antonio
When
the team of P/CI Tria reached the place of operation, they found Emily standing
in front of her house. PO1 Area, who was the poseur-buyer, called her and when
she came near him, he told her that he would buy shabu. PO1 Area then
handed to Emily P250.00, consisting of two pieces of P100.00 bill and one piece of P50.00
bill. After receiving the money from PO1 Area, Emily immediately went to her
house and got a coin purse. When she returned at the scene of the operation,
Emily gave PO1 Area one sachet of shabu, which she got from the coin
purse. Subsequently, Roger appeared and handed to Emily 12 plastic sachets of shabu which Emily placed inside the coin
purse. At this point, PO1 Area identified himself as a police officer while
giving the signal to his team that the buy-bust turned positive. He arrested
Emily while Roger ran away and went inside their house. PO1 Area informed Emily
of her constitutional rights, but the latter failed to utter any word.[9]
While
PO1 Area was holding the arm of Emily, who still had in her hands the coin
purse where she got the sachet of shabu and the buy-bust money, P/CI
Tria took pictures of the incident using his cellphone while the official
photographer was also taking pictures. After the search, a coin purse
containing sachets of shabu and a bundle of money was found in Emily's
possession.[10]
PO1 Area then prepared a Receipt for Property Seized (RPS).[11]
Meanwhile,
when Roger left Emily at the scene of the buy-bust operation, he went inside
his house and closed the door. Armed with the search warrant, SPO1 Salvador
Aldave, Jr. (SPO1 Aldave) forced the door open. SPO1 Aldave was the
first person to enter the house, followed by the barangay officials and his fellow officers, SPO1 Roger Masagca
(SPO1 Masagca) and PO1 Ronnie Valeza (PO1 Valeza). The search warrant was shown
to Roger. In his presence and in the presence of Kagawad Jena Arcilla (Arcilla), the raiding team recovered one
piece of aluminum foil, one plastic sachet containing residue of white
crystalline substance, and one small pair of green scissors beside the bed
inside a room, and 15 pieces of used lighters from an improvised altar on top
of a wooden table. A search of Roger's pocket yielded two pieces of P50.00
bill and one piece of P100.00 bill. SPO1 Aldave as the seizing officer
prepared and signed an RPS.
At the Virac Police
Station, a body search on Emily resulted in the seizure of bills of different
denominations, totaling P2,720.00. Some of these bills were identified
as those bills photocopied and submitted to the Provincial Prosecution Office.[14]
On
August 4, 2005, immediately after the operation and the execution of the search
warrant, P/CI Tria requested for a laboratory examination of a piece of small
size heat-sealed transparent plastic sachet, containing white crystalline
substance marked with initial R; 12 pieces of small size heat-sealed
transparent plastic sachets, containing white crystalline substance with
sub-markings R-1 to R-12; and one small size crumpled aluminum foil and
small size plastic sachet. The request of P/CI Tria for laboratory examination
dated August 4, 2005 was received by a certain PO2 Abanio [Abao] and Police
Inspector Sta. Cruz, J. (P/Insp. Sta. Cruz). The sachet with the initial R
was the sachet of shabu sold to PO1 Area during the buy bust operation
while the sachets of shabu marked as R-1 to R-12 were the sachets of
shabu which Roger handed to Emily and which were found in the possession
of Emily after PO1 Area identified himself as a police officer.[15]
Subsequently,
witness Police Senior Inspector Josephine Macura Clemen (PSI Clemen), the
forensic expert, received personally from the receiving clerk (PO2 Abanio) the
above-mentioned marked pieces of evidence. She then immediately conducted
laboratory examination, yielding a result that the 12 pieces of plastic sachets
(with markings R-1 to R-12), the one heat-sealed transparent plastic sachet
with marking R, the one aluminum foil strip, and a small size plastic sachet
contained methamphetamine hydrochloride.[16]
The
accused-appellants were subsequently charged in two separate Informations,[17] both dated
August 4, 2005, with violation of Sections 5, 11 and 12, Article II of R.A. No.
9165, which were respectively docketed as Criminal Case No. 3490 and Criminal
Case No. 3489. The Informations state as follows:
Criminal Case No.
3490
The undersigned Provincial Prosecutor accuses Roger Posada y Urbano and Emily Posada y Sarmiento of Violation of R.A. 9165 defined and penalized under Section 5 of said Law, committed as follows:
That on or about the 3rd day of August 2005 at noontime along Imelda Blvd. in barangay Concepcion, municipality (sic) of Virac, [P]rovince of Catanduanes, Philippines and within the jurisdiction of the Honorable Court, the above-named accused without the authority of law, conspiring, confederating and helping one another, did then and there willfully, unlawfully, and feloniously sell, deliver and give away to another 12 pieces of transparent sealed plastic sachet containing Methamphetamine Hydrochloride[,] locally known as shabu[,] with a total weight of 0.9 gram [-] a prohibited drug[,] and several marked money bills.[18] [Emphasis supplied]
Criminal Case No.
3489
The undersigned Provincial Prosecutor accuses Roger Posada y Urbano of Violation of R.A. 9165 defined and penalized under Section 12 of said law, committed as follows:
That on or about the 3rd day of August 2005 in the afternoon in Barangay Concepcion, municipality (sic) of Virac, province (sic) of Catanduanes, Philippines, within the jurisdiction of the Honorable Court, the said accused without the authority of law did then and there willfully, unlawfully and feloniously possess and in control of one (1) piece of teared plastic sachet containing residue of a crystalline substance[,] locally known as shabu, (1) piece small aluminum foil, (1) piece small scissors (sic) and 15 pieces of used lighter[,] which paraphernalia are (sic) fit or intended for smoking or introducing any dangerous drug into the body of a person.[19]
However,
the Information for Criminal Case No. 3490 was later amended,[20] to reflect
a change in the weight of the seized drugs from 0.9 gram to 0.4578 gram.
Meanwhile,
on the part of the accused-appellants, they simply denied the accusations
against them. Roger claimed that on April 3, 2005 (which was even a misleading
date since the event happened on August 3, 2005), at around 12 noon, he was
putting his three year-old child to sleep inside their house, while his wife
Emily was washing their clothes at his parents' house. He then peeped through
the window jalousies when he heard his wife calling out his name. He saw a
policeman, later identified as PO1 Area, pulling Emily towards the road. Roger
claimed that PO1 Valeza later poked a gun at him, preventing him to move from
the window. Thereafter, the door of Roger's house was forced open, allowing
SPO1 Aldave, SPO1 Masagca, PO1 Valeza and Barangay
Tanod Vic Vargas (Vargas) to enter his house. Inside the house, PO1 Valeza
allegedly took down the jackets hanging on the wall and searched them; SPO1
Aldave took pictures while Vargas and SPO1 Masagca went inside the room and
searched the cabinets where toys were kept. Roger further claims that nothing
was found in his house. After the search, Roger was brought to the patrol car
where his wife Emily was taken.[21]
Meanwhile,
Emily testified that on that fateful day of August 3, 2005, she was washing
clothes at her mother-in-law's house when a man, whom she could not identify,
approached her and asked her if she was Emily Posada. She alleged that the man
immediately held her hands, shouting Police! Police! after which police
officers Tria and Aldave arrived. Her picture was taken. Subsequently, she was
brought to the patrol car where her husband Roger later joined her. Both Roger
and Emily were then transported to the police station. Roger was placed behind
bars while Emily was placed at the detention cell of the Bureau of Jail
Management and Penology (BJMP).[22]
The
couple claimed that the police officers did not inform them why they were
brought to the police station and subsequently detained. Emily denied that a
buy-bust operation was conducted against her, but she was aware of the search
conducted in their house because her husband informed her at the police station.
Meanwhile, Roger also denied that the police officers presented to him a search
warrant. Likewise, both alleged that the money taken from Emily's wallet were
the proceeds of the sale of their chickens, which Roger gave to Emily. The said
money amounted to more or less P3,000.00.[23]
Issues
Considering
that the accused-appellants did not file a supplemental brief and that appellee
People of the
I
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE
ACCUSED-APPELLANTS NOTWITHSTANDING THE PROSECUTION'S FAILURE TO ESTABLISH THE
CHAIN OF CUSTODY AND INTEGRITY OF THE ALLEGED SEIZED ILLEGAL ITEMS.
II
THE COURT A QUO GRAVELY ERRED IN CONVICTING THE
ACCUSED-APPELANTS DESPITE THE PROSECUTION'S FAILURE TO PROVE THEIR GUILT BEYOND
REASONABLE DOUBT.[25]
Our Ruling
While we give due credence to the trial
court's evaluation of the credibility of witnesses absent any showing that the
elements of the crime have been overlooked, misapprehended, or misapplied, we
will take pains in taking a second hard look on the issues the
accused-appellants raised, considering they are husband and wife whose
imprisonment will greatly affect the children they will leave behind once they
are declared guilty beyond reasonable doubt.
Now, we are going to discuss the case
following the issues the accused-appellants raised.
The prosecution has
established the chain of custody and integrity of the seized illegal items.
The accused-appellants alleged that the
prosecution failed to establish the chain of custody and integrity of the
seized illegal items because:
(1) The
apprehending officers allegedly failed to submit the seized illegal items to
the PNP Crime Laboratory Service for a qualitative and quantitative examination
within the mandatory 24-hour period from confiscation; and
(2) There is an alleged discrepancy as to the
number of plastic sachets recovered from the accused-appellants and those
submitted to forensic chemist PSI Clemen.
On the first factual issue, we find that the records of the case and the
testimonies of witnesses belie the accused-appellants' contention.
Based on the records, the buy-bust
operation, the arrest of the accused-appellants and the confiscation of the illegal items happened at around 12 noon of August 3, 2005.[26]
PO1 Area received from Emily one sachet of shabu and after PO1
Area introduced himself and arrested Emily, 12 more sachets of shabu were
found in the possession of Emily. The
said 12 sachets of shabu were inside a coin purse, with a bundle of money.[27]
PO1 Area prepared on the same day an RPS[28]
in the presence of
The
accused-appellants wanted us to believe that a day had lapsed before P/CI Tria
submitted the illegal drugs to PNP
Crime Laboratory Service, contrary to the mandate of Section 21 of R.A.
No. 9165. They even cited the testimony of P/CI Tria where the latter allegedly
admitted submitting the subject seized items on August 4, 2005. However, a
close look at the testimony of P/CI Tria[31]
will reveal that nothing in it would show that he submitted the alleged illegal
drugs beyond the 24-hour reglementary period. In fact, even the Laboratory
Examination Request dated August 4, 2005 does not indicate violation of Section
21 of R.A. No. 9165.[32]
Clearly, from the foregoing, the accused-appellants failed to adduce any
evidence to prove their contention. The age-old but familiar rule that he who alleges must
prove his allegation applies[33]
in this case. The accused-appellants' failure to show evidence that the police
officers did not comply with Section 21 of R.A. No. 9165 gives us no other
recourse but to respect the findings of trial court and of the CA.
Furthermore,
the CA is correct in giving credence to the testimonies of the police officers
as regards the timely submission of the subject illegal drugs since they are
presumed to have regularly performed their duties, unless there is evidence
suggesting ill-motive on the part of the police officers.[34]
In this case, the accused-appellants failed to contradict the presumption. What
goes against the accused-appellants is the fact that they have not offered any evidence
of ill-motive against the police officers. Emily even admitted that she did not
know PO1 Area, the poseur-buyer.[35]
Considering that there was no existing relationship between the police officers
and the accused-appellants, the former could not be accused of improper motive
to falsely testify against the accused-appellants. In People v. Dumangay,[36]
we upheld the findings of the lower court on the presumption of regularity in
the performance of official duties because there was no proof of ill-motive. Therein,
the accused-appellants self-serving and uncorroborated defenses did not
prevail over the trial court's findings on the credibility of witnesses. The
same may be said in the present case.
Finding
the accused-appellants' arguments without a leg to stand on, the apprehending police officers are
presumed to have timely submitted the
seized illegal items to the PNP Crime Laboratory Service for a qualitative and
quantitative examination within the mandatory 24-hour period from confiscation.
On the second factual issue, we find the accused-appellants' claim not
supported by evidence.
The accused-appellants alleged that the
integrity of the seized illegal items was compromised and their evidentiary
value diminished because of the alleged discrepancy between the number of
plastic sachets recovered from the accused-appellants and those submitted to
forensic chemist PSI Clemen. They insisted that based on the Informations in
Criminal Case Nos. 3489 and 3490 and the testimonies of witnesses Asuncion[37]
and SPO1 Aldave,[38]
only fourteen (14) plastic sachets were recovered from the accused-appellants,
while PSI Clemen allegedly testified that a total of 15 sachets were submitted
for examination.[39]
However, a review of the defense-quoted
testimony of PSI Clemen would show that she received one piece of small size
heat-sealed transparent plastic sachet with marking R,[40]
12 pieces small size heat-sealed marked as R-1 to R-12[41]
and one small size crumpled aluminum foil and small size plastic sachet[42]
totaling to 15 items. PSI Clemen's testimony tallies with the Laboratory
Examination Request (Exhibit J) of P/CI Tria. We reproduce Exhibit J below,
to wit:
Republic of
the
NATIONAL
POLICE COMMISSION
PHILIPPINE
NATIONAL POLICE
Virac
Municipal Police Station
Virac,
Catanduanes
MEMORANDUM:
FOR : The
Chief
PNP Crime Laboratory Service
SUBJECT : Laboratory
Examination request for
DATE : 04
August 2005
----------------------------------------------------------------------
1. Request conduct laboratory
examination on the accompanying specimen to determine whether the white
crystalline granules inside Thirteen (13) pcs small size transparent heat seald
(sic) plastic sachets are Methamphetamine Hydrochloride or SHABU and also
whether the one (1) pc small size crumpled aluminum foil and small size
transparent plastic sachet contains residue or granules of Methamphetamine
Hydrochloride or Shabu.
|
EXHIBIT |
QUANTITY/ DESCRIPTION |
|
A |
One (1) pc small size heat sealed transparent plastic sachet sachet (sic) containing white crystalline substance with marking initial R the initial of PO1 ROLDAN AREA who acted as posuer (sic) buyer during the drug buy bust operation. |
|
B |
Twelve (12) pcs small size heat sealed transparent plastic sachet containing white crystalline substance with markings R1-R12 found/confiscated from the suspect during drug buy bust operation. |
|
C |
One (1) small size crumpled aluminum foil and small size plastic sachet confiscated/found in the possession of suspect during the execution of search warrant number 37 issued by Hon[.] Judge Jaime E[.] Contreras of RTC Branch 43. |
SUSPECT/S Roger Posada y Urbano
Emily Posada y Sarmiento
John-John Bryan Urbano y Zafe
COMPLAINANT Officer-in-Charge
Virac MPS
FACTS OF THE CASE: Evidence
submitted for laboratory examination was bought and others were confiscated by
the PNP team of Virac during Buy Bust (sic) operation and the effect/execution
of search warrant number 37 on August 3, 2005 in [B]arangay Concepcion Virac,
Catanduanes.
2. Request acknowledge reciept
(sic) and furnish this office Laboratory examination result as soon as possible
for subsequent submission/filing same in court as supporting documents to this
case.
GIL FRANCIS G[.] TRIA
Pol Chief Inspector
Officer-in-Charge[43]
Based on the cited exhibit, we find
that in Exhibit A we have the first item, marked with R. Under Exhibit B,
we have the next 12 items marked as R-1 to R-12. Under Exhibit C, we have
the remaining two items submitted to the crime laboratory, namely one small
size crumpled aluminum foil and small size plastic sachet confiscated and found
in the possession of Roger. All these items total to 15 items consistent with
the testimony of PSI Clemen. Thus, evidence shows no discrepancy as to the number
of plastic sachets recovered from the accused-appellants and those submitted to
forensic chemist PSI Clemen.
Finally,
we say that the prosecution has established the chain of custody and integrity
of the seized illegal items.
After
PO1 Area arrested Emily and confiscated the 13 sachets of shabu (one
bought by PO1 Area from Emily and 12 found in Emily's coin purse after she
received the same from her husband Roger),[44]
P/CI Tria took pictures of the incident using his cellphone while the official
photographer was also taking pictures.[45]
Then PO1 Area prepared an RPS,[46]
which P50.00 bill and one piece of P100.00
bill.
From
the foregoing, the prosecution, without
an iota of doubt, has established the
chain of custody and integrity of the seized illegal items. The Supreme Court
in People v. Sanchez,[52]
clearly discussed how chain of custody should be proven, to wit:
As
a method of authenticating evidence, the chain of custody rule requires that
the admission of an exhibit be preceded by evidence sufficient to support a
finding that the matter in question is what the proponent claims it to be. It would include testimony about every link
in the chain, from the moment the item was picked up to the time it is offered
into evidence, in such a way that every person who touched the exhibit would
describe how and from whom it was received, where it was and what happened to
it while in the witness' possession, the condition in which it was received and
the condition in which it was delivered to the next link in the chain. These
witnesses would then describe the precautions taken to ensure that there had
been no change in the condition of the item and no opportunity for someone not in the chain to have possession
of the same.[53]
In the instant case, the prosecution
was able to present, not only the corpus delicti, but the testimonies of the people
involved in each link in the chain of custody.
The
prosecution failed to prove beyond reasonable doubt that the accused-appellants
sold 12 sachets of shabu, but it has proven the accused-appellants'
guilt beyond reasonable doubt of possession of the same number of shabu in
violation of Section 11, Article II of R.A. No. 9165.
Before
we proceed in discussing the guilt of the couple, we must first take into
account a discrepancy in the Information for Criminal Case No. 3490. In the
said information, the accused-appellants were charged for selling 12 pieces of
transparent sealed plastic sachet of shabu. However, based on the
evidence which the prosecution adduced, Emily sold to PO1 Area one sachet of shabu, which was worth P250.00. Then, after she handed the
one sachet of shabu to the poseur-buyer, Emily received additional 12
sachets of shabu from her husband Roger and when PO1 Area informed the
couple of the buy-bust, Emily had in her possession the 12 sachets of shabu.[54] Subsequently, the confiscated sachets of shabu were marked. The one sold to PO1 Area was marked with R, while the 12 sachets of shabu Roger handed to Emily before
their arrest were marked as R-1 to R-12.[55]
The unfortunate fact of this case is that rather than
separately charging Emily for the sale of the one sachet of shabu
and charging both Emily and Roger for possession of the 12 sachets of shabu,
the public prosecutor lumped the charges together to sale of 12 sachets of shabu.
This is wrong. The Information is defective for charging the accused-appellants
of selling 12 sachets of shabu when, in fact, they should have been charged of selling one sachet of shabu
and possessing 12 sachets of shabu. From the evidence adduced, Emily and
Roger never sold the 12 sachets of shabu. They possessed them. Thus,
they should have not been convicted for selling the 12 sachets of shabu.
However, this was exactly what was done both by the trial court and the CA.
Without basis in fact, they convicted the couple for selling the 12 sachets of shabu.
Indeed, it must be pointed out that the
prosecution filed a defective Information. An Information is fatally defective when it is clear
that it does not really charge an offense[56] or when an essential
element of the crime has not been sufficiently alleged.[57] In the instant case,
while the prosecution was able to allege the identity of the buyer and the
seller, it failed to particularly allege or identify in the Information the
subject matter of the sale or the corpus delicti. We must remember that
one of the essential elements to convict a person of sale of prohibited drugs
is to identify with certainty the corpus delicti. Here, the prosecution
took the liberty to lump together two sets of corpora delicti when it should have
separated the two in two different informations. To allow the prosecution to do
this is to deprive the accused-appellants of their right to be informed, not
only of the nature of the offense being charged, but of the essential element
of the offense charged; and in this case,
the very corpus delicti of the crime.
Furthermore, when ambiguity exists in the complaint or
information, the court has no other recourse but to resolve the ambiguity in
favor of the accused.[58] Here, since there exists ambiguity as to the
identity of corpus delicti, an essential element of the offense charged,
it follows that such ambiguity must be resolved in favor of the
accused-appellants. Thus, from the foregoing discussion, we have no other
choice but to acquit the accused-appellants of sale of 12 sachets of shabu.
Truly, both the trial court
and the CA were wrong in convicting the couple
for selling 12 sachets of shabu because the prosecution failed to show that the
husband and wife had indeed sold the 12 sachets of shabu. Section 5,
Article II of R.A. 9165 provides:
SEC. 5. P]500,000.00) to Ten million pesos ([P]10,000,000.00) shall be imposed
upon any person, who, unless authorized by law, shall sell, trade, administer,
dispense, deliver, give away to another, distribute, dispatch in transit or
transport any dangerous drug, including any and all species of opium poppy
regardless of the quantity and purity involved, or shall act as a broker in any
of such transactions.
More,
jurisprudence holds that the prosecution for illegal sale of dangerous
drugs can only be successful when the following elements are established, namely:
(1) the identity of the
buyer and the seller, the object and consideration of the sale; and
(2) the delivery of the
thing sold and the payment therefore..[59]
To our minds, while there was indeed a
transaction between Emily and PO1 Area, the prosecution failed to show that the
subject matter of the sale to PO1 Area was the 12 sachets of shabu. Based
on the testimony of PO1 Area, the 12 sachets of shabu were the sachets
of shabu which Roger handed to his wife Emily and were not sold, but
which PO1 Area found in her possession after the latter
identified himself as a police officer.
In People v. Paloma,[60] we
acquitted the accused for the prosecution's failure
to prove the crime of illegal sale of drugs, and we have set the standard
in proving the same, to wit:
Under the "objective" test set by the Court in People v. Doria, the prosecution must clearly and adequately show the details of the purported sale, namely, the initial contact between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the consideration, and, finally, the accused's delivery of the illegal drug to the buyer, whether the latter be the informant alone or the police officer. This proof is essential to ensure that law-abiding citizens are not unlawfully induced to commit the offense.[61]
In the instant case, PO1 Area's
testimony showed no evidence that the transaction as to the sale of the 12
sachets of shabu ever happened. Rather, PO1 Area adequately testified on
the fact that accused-appellant Roger handed the 12 sachets of shabu to
Emily who kept them in a coin purse. And after PO1 Area identified himself as a
police operative, he found the 12 sachets
of shabu in Emily's possession.[62] From the
foregoing, while the prosecution was able to prove the sale of one sachet of shabu, it is
patently clear that it never
established with moral certainty all the elements of illegal sale of the 12
sachets of shabu. And failure to show that indeed there was sale means
failure to prove the guilt of the accused for illegal sale of drugs, because
what matters in the prosecution for illegal sale of dangerous drugs is to show
proof that the sale actually happened, coupled with the presentation in court
of corpus delicti.[63] Here,
the prosecution failed to prove the existence of the sale of the 12 sachets of shabu
and also to prove that the 12 sachets of shabu presented in court
were truly the subject matter of the sale between the accused-appellants and
PO1 Area.
Notwithstanding the above-discussion, we convict both Roger
and Emily of illegal possession of prohibited drugs despite the fact that they
were charged for the sale of illegal drugs, because possession is necessarily included in
sale of illegal drugs.
Section 4, Rule 120 of the Rules of
Court provides:
Sec. 4. Judgment in case of variance between allegation and proof. When there is variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved.
Since sale of
dangerous drugs necessarily includes possession of the same, the accused-appellants
should be convicted of possession. We have consistently ruled that possession
of prohibited or dangerous drugs is absorbed in the sale thereof.[64]
Then Associate Justice Artemio Panganiban logically and clearly explained the
rationale behind this ruling, to wit:
The prevailing doctrine is that possession of marijuana is absorbed in the sale thereof, except where the seller is further apprehended in possession of another quantity of the prohibited drugs not covered by or included in the sale and which are probably intended for some future dealings or use by the seller.
Possession is a necessary
element in a prosecution for illegal sale of prohibited drugs. It is
indispensable that the prohibited drug subject of the sale be identified and
presented in court. That the corpus
delicti of illegal sale could not be established without a showing that the
accused possessed, sold and delivered a prohibited drug clearly indicates that
possession is an element of the former. The same rule is applicable in cases of
delivery of prohibited drugs and giving them away to another.[65] (Citations
omitted)
For prosecution of
illegal possession of dangerous drugs to prosper, the
following essential
elements must be proven, namely: (1) the accused is in
possession of an item or object that is identified to be a prohibited drug; (2) such
possession is not authorized by law; and (3) the accused freely and consciously
possess the said drug.[66]
All these elements are obtaining and
duly established in this case and we will discuss them thoroughly below, since we are
not ready to altogether exonerate the couple.
On Emily's Liability
To our minds, the testimony of PO1 Area
is sufficient to establish concurrence of all the elements necessary to convict
Emily of violating Section 11, Article II of R.A. No. 9165. PO1 Area vividly narrated
the details of the buy-bust operation. He recounted how on August 3, 2005 at
around 12 noon, he acted as the poseur-buyer of shabu. He approached
Emily, who was then standing in front of their house, and told her that he
would like to buy shabu, and then gave her the P250.00. Emily
then returned to her house and got a coin purse. Upon returning, Emily handed
to PO1 Area a piece of sachet containing shabu. After receiving the
sachet of shabu, PO1 Area saw Roger hand the 12 sachets of shabu to
Emily who kept them in a coin purse. After paying for and receiving the sachet
of shabu from Emily, PO1 Area arrested the latter and found in her
possession the 12 sachets of shabu.[67]
From the foregoing, it is patently clear that the prosecution established with
moral certainty all the elements of illegal possession of shabu, that
is: PO1 Area found in Emily's physical and actual possession the 12 sachets of shabu; such possession of the 12 sachets
of shabu was not authorized; and since Emily put the 12 sachets of shabu
in the purse after receiving them from her husband, she possessed the same
freely and consciously.
Furthermore, PO1 Area's testimony was
corroborated by the testimonies of the following: (a) Barangay Kagawad
Sarmiento who witnessed how PO1 Area caught Emily doing the illegal act; (b) Barangay
Captain Asuncion, Jr. who testified that he was with the raiding team when
the latter conducted the buy-bust operation and that he witnessed how money
changed hands; (c) P/CI Tria who witnessed the buy-bust operation and was one
of the arresting officers; (d) SPO1 Aldave who executed the search warrant; and
(e) Barangay Kagawad Arcilla who also accompanied the raiding team in
the search of the accused-appellants' house. All these witnesses completed all
the angles of the buy-bust operation and the search on Emily's person up to the
finding that she possessed the 12 sachets of shabu. Indeed, considering
all of the above-findings of facts, we cannot have other conclusion but to find
Emily guilty beyond reasonable doubt for possession of prohibited drugs.
Indeed, every accused deserves a second
look before conviction. This is the essence of the constitutional presumption
of innocence. In the present case, we did not only take a second look at the
facts and laws of this case because the accused-appellants are both parents. We
take a third, a fourth up to a seventh look to ensure that no child will be
left unattended because his parents were imprisoned based on false accusations.
Thus, after reviewing this case, the bare truth is Emily was found in
possession of 12 sachets of shabu on August 3, 2005.
On Roger's Liability
As to Roger, can we also convict him of
possession of the same 12 sachets of shabu considering that same had been found
in the possession of his wife Emily?
We resolve in the affirmative.
In United States v. Juan,[68]
we have clarified the meaning of the words having possession of. We said that
the said phrase included constructive possession, that is, the relation
between the owner of the drug and the drug itself when the owner is not in
actual physical possession, but when it is still under his control and
management and subject to his disposition.[69]
In other words, in that case, we recognized the fact that a person remains to
be in possession of the prohibited drugs although he may not have or may have
lost physical possession of the same.
To elucidate, we must go back to the
circumstances surrounding the Juan case. A Chinaman named Lee See
arrived at the
Our ruling in Juan applies to
the present case. Admittedly, the 12 sachets of shabu were found in the
possession of Emily. But PO1 Area saw Roger hand the same 12 sachets of shabu
to Emily. While Roger had lost physical possession of the said 12 sachets
of shabu, he had constructive possession of the same because they remain
to be under his control and management. In the Juan case, Lee See gave
the physical possession of the opium to Cabinico while Chan Guy Juan had not
yet received the same opium from Lee See, but both were held guilty of illegal
possession of opium. Thus, we can liken the instant case to that of Juan because
while Roger had lost physical possession of the 12 sachets of shabu to
Emily, he maintained constructive possession of the same.
Convicting both Emily and Roger of
possession of illegal drugs deprives their children of parents. But if we have
to take care of our children and the family where each of us belongs, we are
obligated to put in jail all those, including fathers and mothers, who peddle
illegal drugs.
Finally,
we cannot let this case pass us by without emphasizing the need for the public
prosecutor to properly evaluate all the pieces of evidence and file the proper
information to serve the ends of justice. The public prosecutor must exert all
efforts so as not to deny the People a remedy against those who sell prohibited
drugs to the detriment of the community and its children. Many drug
cases are dismissed because of the prosecutor's sloppy work and failure to file
airtight cases. If only the prosecution properly files the Information and prosecutes the same with precision, guilty drug
pushers would be punished to the extent allowed under the law, as in this case.
WHEREFORE, the Decision
of the Court of Appeals dated June 17, 2010 is MODIFIED. Accused-appellants ROGER
POSADA and EMILY POSADA ARE FOUND
GUILTY OF ILLEGAL POSSESSION OF TWELVE (12) SACHETS OF METHAMPETAMINE
HYDROCHOLORIDE OR SHABU,
WITH A NET WEIGHT OF 0.4578 GRAMS AND ARE HEREBY SENTENCED TO THE INDETERMINATE
PENALTY OF TWELVE (12) YEARS AND ONE (1) DAY, AS MINIMUM, TO FOURTEEN (14)
YEARS AND EIGHT (8) MONTHS, AS MAXIMUM AND A FINE OF P300,000.00.
SO ORDERED.
BIENVENIDO L. REYES
Associate
Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
|
ARTURO D.
BRION Associate Justice |
JOSE
Associate Justice |
MARIA
Associate Justice
A T T E S T A
T I O N
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
Courts Division.
ANTONIO
T. CARPIO
Associate Justice
Chairperson, Second Division
C E R T I F I
C A T I O N
Pursuant
to Section 13, Article VIII of the Constitution and the Division Chairperson's
Attestation, I certify 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 Courts Division.
RENATO
C. CORONA
Chief
Justice
[1] People v. Manalansan, G.R.
Nos. 76369-70, September 14, 1990, 189 SCRA 619, 624.
[2] CA rollo, pp. 45 and 51.
[3]
[4] Penned by Associate Justice Antonio L. Villamor, with Associate Justices Jose C. Reyes, Jr. and Elihu A. Ybaez, concurring; rollo, pp. 2-20.
[5] CA rollo, p. 47.
[6]
[7]
[8]
[9]
[10] TSN, October 31, 2006, pp. 13-14.
[11] RTC records, Criminal Case No. 3490, p. 87.
[12] TSN, October 31, 2006, pp. 9-10; TSN, May 10, 2006, pp. 12-17.
[13] RTC records, Criminal Case No. 3490, p. 110.
[14] CA rollo, pp. 48 and 160.
[15] RTC records, Criminal Case No. 3490, p. 89.
[16]
[17]
[18] RTC records, Criminal Case No. 3490, pp. 1-2.
[19] RTC records, Criminal Case No. 3489, pp. 5-6.
[20] RTC records, Criminal Case No. 3490, pp. 20-21.
[21] TSN, August 28, 2007, pp. 3-6, 10, 12-18.
[22] TSN, August 31, 2007, pp. 3-6.
[23]
[24] CA rollo, p. 83.
[25]
[26] RTC records, Criminal Case No. 3490, p.3; TSN, August 31, 2007, p. 3, Criminal Case No. 3489.
[27] RTC records, Criminal Case No. 3490, p. 6
[28] Supra note 11.
[29] TSN, October 31, 2006, pp. 9-10.
[30] TSN, October 31, 2006, pp. 8-9.
[31] Accused-appellants cited TSN, October 31, 2006, p. 8.
[32] Supra note 15.
[33] Evangelista v. People, G.R. No.163267, May 5, 2010, 620 SCRA 134, 148, citing Samson v. Daway, 478 Phil. 784, 795 (2004).
[34] People v. Unisa, G.R. No. 185721, September 28, 2011.
[35] TSN, August 31, 2007, pp. 8-10.
[36] G.R. No. 173483, September 23, 2008, 566 SCRA 290.
[37] TSN, May 10, 2006, p. 13-14.
[38] TSN, May 8, 2006, p. 7.
[39] TSN, May 19, 2006, pp. 7-8 for Criminal Case No. 3490.
[40]
[41] TSN, May 19, 2006, pp. 3 and 5-6 for Criminal Case No. 3490.
[42] Supra note 40.
[43] Supra note 15.
[44] Duplicate TSN, July 19, 2006, pp. 10-13, 22-24.
[45] TSN, October 31, 2006, pp. 13-14.
[46] Supra note 11.
[47] TSN, October 31, 2006, pp. 9-10; TSN, May 10, 2006, pp. 12-17.
[48] Supra note 13.
[49] Supra note 15.
[50]
[51] Duplicate TSN, July 19, 2006, pp. 11-12, 15, 17; TSN, May 19, 2006, pp. 3-9.
[52] G.R. No. 175832, October 15, 2008,
569 SCRA 194, 216.
[53]
[54] Supra note 44.
[55] Supra note 15.
[56] Dela
Chica v. Sandiganbayan, 462 Phil. 712, 723 (2003).
[57] People v. Galido, G.R. Nos.
148689-92, March 30, 2004, 426 SCRA 502.
[58] People v. Ng Pek, 81 Phil. 562, 565 (1948).
[59] Supra note 34; People v. Macatingag, G.R. No. 181037, January 19, 2009, 576 SCRA 354, 361-362.
[60] G.R.
No. 178544, February 23, 2011.
[61]
[62] Duplicate TSN, July 19, 2006, pp.
7-12.
[63] Please see People v. Macatingag, G.R. No. 181037, January 19, 2009, 576 SCRA 354, 362; People v. Dumangay, G.R. No. 173483, September 23, 2008, 566 SCRA 290, 298.
[64] People v. Lacerna, 344 Phil. 100, 121 (1997); People v. Tabar, G.R. No. 101124, May 17, 1993, 222 SCRA 144, 152.
[65]
[66] People v. Dela Cruz, G.R. No. 182348,
November 20, 2008, 571 SCRA 469, 474-475.
[67] Supra note 9.
[68] 23 Phil. 105 (1912).
[69]
[70]