SECOND DIVISION
G.R. No. 215192, July 27, 2016
PEOPLE OF THE PHILIPPINES, Appellee, v. BERNABE M. BARTOLINI, Appellant.
D E C I S I O N
CARPIO, J.:
That on or about the 22nd day of June 2004 at about 7:20 o'clock in the evening, more or less, at Barangay Sugbongcogon, Municipality of Tagoloan, Province of Misamis Oriental, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law to possess and to sell any dangerous drugs, knowingly, willfully and feloniously did then and there sell and convey to a third person twenty-six (26) pieces of white rolled Marijuana sticks, having a total weight of 2.2 grams, which when examined gave positive result to the test of the presence of Marijuana, a dangerous drug.Upon arraignment, Bartolini entered a plea of not guilty.
Contrary to and in violation of Section 5, Article II of RA 9165.3chanroblesvirtuallawlibrary
WHEREFORE, in view of the foregoing, the Constitutional presumption of innocence of accused having been overcome by substantial evidence beyond reasonable doubt, this Court finds accused BERNABE M. BARTOLINI, "guilty" beyond reasonable doubt for Violation of Section 5, Article II of R.A. 9165 and without any aggravating nor mitigating circumstance, hereby sentences accused to suffer the penalty of life imprisonment and to pay a fine of Five Hundred Thousand Pesos (P500,000.00).Bartolini filed his Notice of Appeal6 which was given due course by the RTC.
Accused is credited in the service of his sentence consisting of deprivation of liberty with the full time during which he has undergone preventive imprisonment if the detention prisoner agrees voluntarily in writing to abide by the same disciplinary rules imposed upon convicted prisoners.
The twenty-six (26) pieces of white rolled Marijuana sticks are forfeited in favor of the government to be dispensed in accordance with law.
SO ORDERED.5chanroblesvirtuallawlibrary
WHEREFORE, the instant appeal is DENIED. The Decision of the Regional Trial Court is AFFIRMED.8chanroblesvirtuallawlibraryBartolini filed his Notice of Appeal dated 18 September 2014 with the Court of Appeals.9chanrobleslaw
This Court has been consistent in holding that the failure of the authorities to immediately mark the seized drugs raises reasonable doubt on the authenticity of the corpus delicti and suffices to rebut the presumption of regularity in the performance of official duties.18 This is consistent with the provisions of RA 9165 which state:ChanRoblesVirtualawlibrary
Q It was only in Tagoloan Police Station where you brought the suspect later after his arrest and where you marked the twenty-six sticks and three (3) stalks of marijuana? A Yes, Ma'am. Q At the police station? A Yes, Ma'am.17
SECTION 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. — The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:ChanRoblesVirtualawlibraryThere have been cases when the Court relaxed the application of Section 21 and held that the subsequent marking at the police station is valid. However, this non-compliance is not fatal only when there are (1) justifiable grounds and (2) the integrity and evidentiary value of the seized items are properly preserved.19 And while the amendment of RA 9165 by RA 1064020 now allows the conduct of physical inventory in the nearest police station, the principal concern remains to be the preservation of the integrity and evidentiary value of the seized items. In this case, however, the prosecution offered no explanation at all for the non-compliance with Section 21, more particularly that relating to the immediate marking of the seized items. This non-explanation creates doubt on whether the buy-bust team was able to preserve the integrity and evidentiary value of the items seized from Bartolini.(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;
x x x x (Emphasis supplied)
The failure to immediately mark the seized items, taken together with the absence of a representative from the media to witness the inventory, without any justifiable explanation, casts doubt on whether the chain of custody is truly unbroken. Serious uncertainty is created on the identity of the corpus delicti in view of the broken linkages in the chain of custody.22 The prosecution has the burden of proving each link in the chain of custody - from the initial contact between buyer and seller, the offer to purchase the drug, the payment of the buy-bust money, and the delivery of the illegal drug.23 The prosecution must prove with certainty each link in this chain of custody and each link must be the subject of strict scrutiny by the courts to ensure that law-abiding citizens are not unlawfully induced to commit an offense.24chanrobleslaw
ATTY. MALANOG: Q So you took pictures of the marijuana sticks and stalks? A Yes, Ma'am. Q Where? A Tagoloan Police Station. Q In the presence of the accused? A Yes, Ma'am. Q Was there a media representative present? A There was no media representative[.] But there were barangay officials present. Q But, are you aware of Section 21, RA 9165, that when you took pictures as a result of the entrapment operation, you are supposed to get a media representative to witness the inventory of the items seized? x x x x A At that time, we did not contact any media[.] But, there were barangay officials present at that time. Q You have been enforcing RA 6425 since when, Mr. Witness? A Since 1995. Q What about RA 9165? A In the year 2002. Q And, having enforced that law since 2002, you are aware of the provision on how the evidence should be handled? A Yes, Ma'am. I already have the knowledge since I took up some seminars in anti-narcotics. COURT: (To the witness) Q Handling, custody and marking of evidence? A Yes, Your Honor. ATTY. MALANOG: (To the witness) Q Of course, you are familiar with Section 21 of RA 9165? A Yes, Ma'am.21
SPO4 Larot categorically stated that he did not know who placed the other markings on the seized items, although he offered his view that it represents the Chemistry Report. However, the prosecution did not formally offer the testimony of Police Senior Inspector and Forensic Chemist April Garcia Carbajal, who prepared such Chemistry Report.26 While the testimony of the forensic chemist was dispensed with,27 the prosecution failed to identify such markings in other ways, such as an affidavit, to establish the unbroken chain of custody of the seized items. In fact, there is no evidence as to who handled the seized items after SPO4 Larot turned them over to the laboratory. SPO4 Larot also did not categorically state in his testimony to whom the seized items were turned over to in the laboratory. This failure raises questions as to who exercised custody and possession of the specimen in the laboratory, as well as the manner it was handled, stored and safeguarded pending its offer in court. In People v. Coreche, we held that the failure of the prosecution to provide details pertaining to the post-examination custody of the seized item created a gap in the chain of custody which again raises reasonable doubt on the authenticity of the corpus delicti.28 This also applies in this case, where the prosecution failed to offer any details in the links pertaining to the seized items after they were allegedly turned over by SPO4 Larot to the laboratory which failure casts doubt on the integrity and evidentiary value of the corpus delicti.
Q Alright, now, the twenty-six (26) sticks marijuana cigarettes were confiscated by you from the person of the accused Bernabe Bartolini, as well as, the three (3) stalks of suspected marijuana[.] If those exhibits or specimens will be shown to you, will you be able to identify them? A Yes, Sir. Q Alright, I have here with me these drugs specimens[.] Kindly take a look at them and tell this Honorable Court what relation have these drugs specimens to those drugs confiscated by you on June 22, 2004 from the accused Bernabe Bartolini? A This Exhibit "E" with markings "E-D-292-04" were the ones confiscated from Bernabe Bartolini on that day. Q Who placed the markings here? A I don't know, Your Honor. But, I made a marking inside this "A". Q There is a masking tape around the plastic transparent cellophane with marking "A-D-292-04". Do you know who made these markings? A I don't know. I already have a marking inside Alpha. Q How about this "E-1"? There is also a masking tape marked "D-292-04"? A I think that represents the Chemistry Report, Your Honor.25cralawred (Emphasis supplied)
As SPO4 Larot could not hear the conversation between Bartolini and the poseur-buyer, his testimony was mere hearsay and thus the prosecution failed to prove the fact of the transaction. The non-presentation of the poseur-buyer was fatal to the prosecution. In People v. Polizon, we held:ChanRoblesVirtualawlibrary
ATTY. MALANOG: Q While the buy-bust operation was ongoing, you were inside the store[.] The store was how many meters away from the house of Bernabe Bartolini? A Five (5) to eight (8) meters away. Q Now, how many houses were in-between the store and the house of Bernabe Bartolini? A There was none. Q It's in the opposite area of the road? A It was only divided by the road. What I mean is that in this area is the store and across the road is the house of Bernabe Bartolini. Q How about the decoy, where was he situated? A In front of the store. Q Why? You mean Bernabe Bartolini was inside the store? A Our decoy was in the store. Few minutes later, Bernabe Bartolini approached our decoy. Q When Bernabe Bartolini approached your decoy, what did Bernabe Bartolini tell your decoy? A I cannot hear because they were at a distance[.] But, when I looked at them, our decoy showed the money and gave it to Bernabe Bartolini. Q You have not heard the conversation between Bernabe Bartolini and your decoy and you only saw your decoy handing the money to Bernabe Bartolini? A Yes, Ma'am. Q And how many minutes elapsed before Bernabe Bartolini gave the twenty-six (26) marijuana cigarettes from the time he received the money? A More than a minute. Q More than a minute[.] Because you were inside the store and you did not actually hear the conversation and what were they talking about[.] The only time you knew that the transaction was consummated was when he put his white towel on his shoulder? A Yes, Ma'am. Q Which shoulder? Right or left? A Right shoulder. Q So, before the decoy gave the pre-arranged signal, you had no idea that the transaction was already consummated because you waited for that signal? A We were always waiting for the signal. Q My question is this: The only time that you knew that the transaction was consummated was when the decoy put his towel on his shoulder[.] But, before that, you were not sure whether the transaction was already consummated because you were waiting for the signal? A Yes, Ma'am. That was my briefing. That was my instruction.29 (Emphasis supplied)
We agree with the appellant's contention that the non-presentation of Boy Lim, the alleged poseur-buyer, weakens the prosecution's evidence. Sgt. Pascua was not privy to the conversation between Lim and the accused. He was merely watching from a distance and he only saw the actions of the two. As pointed out by the appellant, Sgt. Pascua had no personal knowledge of the transaction that transpired between Lim and the appellant. Since appellant insisted that he was forced by Lim to buy the marijuana, it was essential that Lim should have been presented to rebut accused's testimony.30chanroblesvirtuallawlibraryWhile there have been instances where the Court affirmed the conviction of an accused notwithstanding the non-presentation of the poseur-buyer in a buy-bust operation, this is only when the testimony of such poseur-buyer is merely corroborative, and another eyewitness can competently testify on the sale of the illegal drug.31 In this case however, the lone witness for the prosecution was not competent to testify on the sale of the illegal drug as he merely relied on the pre-arranged signal to apprehend Bartolini.
While it is not essential that the marked money be presented in court or that the money used in the buy-bust operation be marked,33 we find that the discrepancy in the marked money, taken together with the other gaps and lapses in this case, raises questions on the transaction that allegedly took place. In People v. Cruz,34 where the Court held that the failure to use marked money or to present it in evidence is not material since the sale cannot be essentially disproved by the absence thereof, the poseur-buyer was presented as a witness, and there was a direct testimony to establish that the transaction involving the illegal drug indeed took place. This is in stark contrast to the case at bar, as the testimony of the poseur-buyer was not offered in evidence. SPO4 Larot did not hear the conversation between the poseur-buyer and Bartolini. The marked money was not equal to the amount of the alleged transaction. Considering that the team had already conducted a test-buy a few days prior, they should have been more prepared for the buy-bust operation, which includes the preparation of the marked money. All of these, taken in totality, create doubt as to the fact of sale between the poseur-buyer and Bartolini.
ATTY. MALANOG (To the witness) Q Mr. Witness, I heard when you said in your direct-testimony that when you arrested the accused, you recovered from him the marked money, but, only P80.00. Tell this Court how much did you actually recover from him when you subjected him to a body search? A P100.00, Your Honor. But, the marked money was only P80.00. Q Yes. But you only produced P80.00. Where is now the other P20.00 not listed in the Certifipate of Inventory that you prepared? A It was listed, Your Honor. Q Where? A At the bottom, listed there are five (5) pieces of P20.00 bills[.] And, I think I have exhibited the P100.00. Q Why there are now five (5) pieces of P20.00 bills? A I have submitted it to the Court as exhibits.32
Endnotes:
1Rollo, pp. 3-9. Penned by Associate Justice Henri Jean Paul B. Inting, with Associate Justices Edgardo A. Camello and Pablito A. Perez concurring.
2 CA rollo, pp. 75-78. Penned by Judge Noli T. Catli.
3 Id. at 75.
4 Section 5 of RA 9165 provides in part:
chanRoblesvirtualLawlibrarySection 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. — The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) 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. x x x.
5 CA rollo, p. 78.
6Rollo, pp. 10-12.
7 Id. at 3-9.
8 Id. at 9.
9 CA rollo, pp. 120-122.
10People v. De la Cruz, 591 Phil. 259, 269 (2008).
11People v. Frondozo, 609 Phil. 188, 198 (2009).
12 669 Phil. 240, 252 (2011).
13Mallillin v. People, 576 Phil. 576 (2008).
14People v. Zakaria, 699 Phil. 367 (2012).
15People v. Coreche, 612 Phil. 1238 (2009).
16 See People v. Umipang, 686 Phil. 1024 (2012), citing People v. Coreche, id.; People v. Laxa, 414 Phil. 156 (2001); People v. Casimiro, 432 Phil. 966 (2002).
17 TSN, 11 May 2005, p. 22.
18People v. Sabdula, 733 Phil. 85 (2014).
19People v. Sanchez, 590 Phil. 214, 234 (2008).
20 Took effect on 15 July 2014.
21 TSN, 11 May 2005, pp. 22-23.
22People v. Havana, G.R. No. 198450, 11 January 2016.
23People v. Doria, 361 Phil. 595 (1999), citing People v. Tadepa, 314 Phil. 231 (1995) and People v. Crisostomo, G.R. No. 97427, 24 May 1993, 222 SCRA 511, 515.
24 Id.
25cralawred TSN, 11 May 2005, p. 11.
26 Records, p. 164.
27 Id. at 137.
28People v. Coreche, supra note 15, at 1250-1251.
29 TSN, 11 May 2005, pp. 14-15.
30 288 Phil. 821, 826-827 (1992).
31 See People v. Guzon, 719 Phil. 441 (2013), citing People v. Orteza, 555 Phil. 700, 709 (2007); People v. Ambrosio, 471 Phil. 241 (2004).
32 TSN, 11 May 2005, p. 13.
33People v. Cruz, 667 Phil. 420 (2011).
34 Id.
35People v. Suan, 627 Phil. 174, 192-193 (2010), citing People v. Teves, 408 Phil. 82, 102 (2001).
36People v. Mendoza, 736 Phil. 749 (2014), citing People v. Belocura, 693 Phil. 476 (2012) further citing Patula v. People, 685 Phil. 376 (2012).