PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ALFIE LAPAYAO, ACCUSED-APPELLANT,
LAGURA-YAP, J.:
The dispositive portion[2] of the decision, reads:
WHEREFORE, premises considered, the Court hereby finds accused ALFIE LAPAYAO guilty of the offense charged beyond reasonable doubt. Accordingly, accused ALFIE LAPAYAO is hereby sentenced to suffer imprisonment ranging from 12 years and 1 day, as minimum, to 14 years, as maximum, and to pay a fine of P300,000.00.
Let the article, subject matter hereof, be disposed in accordance with law.
The Information[3] filed on August 2, 2007, against accused Alfie Lapayao alleges:
That on the 27th day of July 2007, at about 9:00 o’clock in the morning, in Sitio Lacaron, Barangay Pitalo, Municipality of San Fernando, Province of Cebu, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without authority of law, did then and there willfully, unlawfully and feloniously have in his possession, custody and control: One (1) heat-sealed transparent plastic sachet marked as “ANL” containing 0.05 gram of white crystalline substance, which when subjected for laboratory examination gave positive result for the presence of Methamphetamine Hydrochloride, a dangerous drug.
The accused entered a plea of “NOT GUILTY” during the arraignment[4] on August 28, 2007.
The evidence for the prosecution is summarized as follows:
On the 27th day of July 2007, at around 9:00 o’clock in the morning, the barangay tanods set up a checkpoint somewhere at Sitio Lacaran, Pitalo, San Fernando, Cebu to facilitate the flow of traffic for the coming of the governor. They checked motor vehicles of their licenses and registrations. They halted a motorcycle coming out from Sitio Lacaron. Miguel Olita, who claims to be a deputized agent of the Land Transportation Office, asked for their drivers license and registration receipt. The chief tanod, Cresente Generale who was positioned at the right side of the motorcycle facing Naga, Cebu saw the back-rider dropped something from his right hand. Cresente picked up the fallen object and discovered it to be a miniature plastic pack containing white crystalline substance believed to be shabu. In view of that, the back-rider was further subjected to a body search. An aluminum tin foil was allegedly recovered from the right pocket of the suspect’s short pants. Thus, the suspect, who was later known to be Alfie Lapayao, was charged of violation of Section 11, Article II, RA 9165 based upon the positive result of the specimen submitted for laboratory examination as contained in Chemistry Report No. D-798-2007.
Evidence for the defense is summarized hereunder:
On June 27, 2007, the accused was riding a motorcycle driven by Jinggoy Mancio when they were stopped by the barangay tanods. The driver was asked for his license and registration, when all of a sudden a tanod from a distance shouted that the accused threw something. The accused alleged that he only threw away a cigarette. He denied the allegation that the tanods recovered an aluminum tin foil from the right side pocket of his short pants. In fact his short pants did not have a right pocket. Despite their pleadings, they were apprehended and brought to the San Fernando Police Station. The accused said that he was never shown a plastic packet when he was arrested at the checkpoint. It was only at the police station that he was shown a plastic packet. The accused never knew where it came from.
After the trial, the RTC promulgated[5] its judgment of conviction against the accused. Aggrieved, he filed a Notice of Appeal[6] dated March 2, 2010. The accused-appellant filed a Motion to Post New Bail Pending Appeal also on March 2, 2010.[7] The Motion to Post New Bail Pending Appeal was approved in the Order[8] dated March 16, 2010.
ASSIGNMENT OF ERRORS
I
THE ACCUSED-APPELLANT’S CONVICTION IS NULL AND VOID FOR HAVING BEEN RENDERED CONTRARY TO THE PROVISION OF LAW AND JURISPRUDENCE.
II
THE COURT A QUO ERRED IN FINDING THAT THE PROSECUTION SUCCEEDED IN PROVING BEYOND REASONABLE DOUBT THAT THE ACCUSED-APPELLANT IS GUILTY OF THE CRIME CHARGED TAKING INTO CONSIDERATION THAT THE COURT A QUO GRANTED THE BAIL APPLIED BY THE ACCUSED-APPELLANT.III
THE COURT A QUO ERRED IN GIVING DUE WEIGHT TO THE PRESUMPTION OF REGULARITY OF PERFORMANCE OF DUTIES VIS-A-VIS PRESUMPTION OF INNOCENCE BASED ON FLAWED CHAIN OF CUSTODY.
The accused-appellant argues that he was subjected to citizen’s arrest because the arresting officers were not deputized agents of the Land Transportation Office. Therefore, there must be an affidavit of arrest wherein it would be stated that the arresting individual saw the accused committing the crime in flagrante delicto. Due to such fact the arresting individual effected a citizen’s arrest and accorded the accused of his constitutional rights. However, perusal of the records reveals that there was no affidavit presented and the accused-appellant was not informed of his constitutional rights. Jurisprudence dictates that the absence of the requirements for a valid arrest renders the arrest illegal and violates his constitutional rights. The items confiscated from the accused-appellant are therefore inadmissible in evidence.
The accused-appellant is of the view that the prosecution failed to establish the corpus delicti of the case. The evidence would show that the prosecution witnesses namely Miguel Olita and Cresente Generale have no personal knowledge of what happened to the shabu right after they turned it over, together with the accused-appellant to the police station. The marking of the plastic sachet of shabu was also done in the police station. It was made by a duty investigator who was not presented in court. Instead they presented the Chief of Police of San Fernando Police Station, who cannot recall the family name of the duty investigator. It is very important to account for every link of the chain starting from turn-over by the barangay tanods to the investigator, to the chemist, until the specimen was presented in court. Therefore, the prosecution failed to prove that the dangerous drugs submitted for laboratory examination is the same one allegedly taken from the accused-appellant.
The accused-appellant ratiocinates that the presiding judge of the court a quo granted the bail for two instances, December 23, 2009 and March 16, 2010. In both instances, the grant of bail is left at the discretion of the court a quo which manifests that the evidence against the accused-appellant is not strong.
The accused-appellant also posits the view that reliance on the presumption of regularity in the performance of duty is not enough for conviction. Once challenged by evidence of flawed chain of custody, the presumption of regularity cannot prevail over the presumption of innocence.
Lastly, while the defense of denial is inherently weak, the conviction of the accused must rely on the strength of the prosecution’s evidence and not the weakness of his defense.
The Solicitor General in his Appellee’s Brief counter argues that the Barangay Tanods were well within their rights to take custody of appellant and bring him to the police station for further investigation. They were posted at the boundary of Naga and San Fernando, Cebu precisely to regulate the flow of traffic as the governor was scheduled to visit the nearby area. There was enough justification for them to be there and perform their peace and order duties because they were barangay tanods. The accused-appellant’s allegation that he was not afforded his Miranda rights is nothing more than self serving remarks. Accused-appellant’s conviction was not brought about by any of his admission during the custodial investigation. Accused-appellant’s conviction is based mainly on the testimonies of the prosecution witnesses.
The Solicitor General avers that the chain of custody and integrity of the evidence have been duly established by the prosecution. Contrary to the allegations of the accused-appellant, the witnesses presented by the prosecution were thorough, precise and exhaustive in their testimonies. The turn over of custody of the items seized was proper. Accused-appellant contends that the marking of the seized items were done in the police station and not in the area of incident. In the case of Dacles vs. People,[9] the Supreme Court upheld the integrity of the corpus delicti even though no initials on the sachet of shabu were placed right after its confiscation. Moreover, non-compliance of the implementing rules of R.A. 9165 will not render the evidence submitted as inadmissible.
Finally, well-settled is the rule that the findings of facts and assessment of credibility of witnesses is a matter best left to the trial court because of its unique position of having observed the elusive and incommunicable evidence of the witnesses’ deportment on the stand while testifying, which opportunity is denied to the appellate courts.[10]
THE COURT’S RULING
The appeal is meritorious.
First, on the issue of warrantless arrest, Section 5, Rule 113 of the Revised Rules of Court is the basic repository of valid warrantless arrests.
“Sec. 5. Arrest without warrant; when lawful. – A peace officer or a private person may, without a warrant, arrest a person:
“(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;
xxxxxxx
In in flagrante delicto arrests, the accused is apprehended at the very moment he is committing or attempting to commit or has just committed an offense in the presence of the arresting officer xxxx.[11] Accordingly, for this exception to apply, two elements must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer.
In the case at bar, the warrantless arrest effected by the barangay tanods were valid based on the circumstances surrounding the arrest of the accused-appellant. The barangay tanods received a verbal order from the provincial commander to conduct routine check up of vehicles coming in and out of the Municipalities of San Fernando and Naga because of the arrival of the governor.[12] While they were already conducting the operation, they flagged down a motorcycle with a back-rider to check on their license and certificate of registration. While doing so, Barangay Tanod Cresente Generale saw accused-apellant throw a plastic sachet at the side of the road. When Barangay Tanod Generale approached, to take a look at the plastic sachet, he saw that it contained a white crystalline powder.[13] So they brought the accused-appellant to San Fernando Police Station for investigation. The accused-appellant in throwing the plastic sachet of shabu committed the crime of illegal possession of drug in the presence of the barangay tanod, who had all the valid reason to be at the place of incident and had the authority to arrest the accused-appellant.
Second, extant in this case are all the elements of illegal possession of drugs: (1) the accused is in possession of an item or object which is identified to be a prohibited drug; (2) such possession is not authorized by law; (3) the accused freely and consciously possesses the said drug. Accused-appellant was positively identified in court Barangay Tanods Olita and Generale Ilagan as the one caught possessing and throwing away the plastic sachet of shabu.
However, this Court finds that the prosecution failed to comply with the chain of custody rule as required in Section 21 of RA 9165 or the Comprehensive Dangerous Drugs Act. A review of the testimony of Police Chief Inspector Antonieto Pepito Cuyos shows that it was SPO1 Edgar Causon who marked the plastic sachet of shabu[14] with the initials “ANL”.[15] The plastic sachet of shabu was marked in front of him (PCI Cuyos), inside his office. The Letter Request[16] for Laboratory Examination was also signed by PCI Cuyos.[17]The prosecution, however, failed to present SPO1 Edgar Causon who allegedly marked the plastic sachet of shabu. The marking of the plastic sachet of shabu is the most crucial link in the chain of custody rule, that failure to present in court the one who marked the plastic sachet of shabu will automatically taint the integrity and evidentiary value of the item seized from the accused-appellant.
In the case of People vs. Martinez[18], the Court ruled that the “marking” of the seized items is to truly ensure that they are the same items that enter the chain and are eventually the ones offered in evidence xxxx. Said the Supreme Court in People v. Habana,[19] since the failure in this case to comply with the procedure in the custody of the seized drugs compromised the identity and integrity of the items seized, which is the corpus delicti of each of the crimes charged against Habana, his acquittal is in order.
The prosecution should have presented every vital witness that could satisfactorily establish the chain of custody, which is crucial in the successful prosecution of illegal possession of drugs. All told, there is a break or gap in the chain of custody and this break or gap has rendered the integrity and the evidentiary value of the plastic sachet of shabu in grave doubt.
Material to the prosecution’s case is SPO1 Edgar Causon’s would be testimony. It was he who allegedly marked the shabu as PCI Cuyos testified in court. But SPO1 Edgar Causon was not presented in court to confirm the fact that he marked the plastic sachet of shabu and to identify the markings he made. In the Chemistry Report[20] offered as evidence by the prosecution it states that the plastic sachet which contained the white crystalline substance, weighing 0.05 grams yielded positive for methamphetamine hydrochloride. This by itself cannot repair the break in the chain. The identity of the plastic sachet of shabu weighing 0.05 grams has been compromised by the lack of evidence as to who marked the plastic sachet of shabu.
Furthermore, there are glaring inconsistencies in the testimonies of Barangay Tanods Miguel Olita and Cresente Generale. Olita testied that right after he turned over the accused-appellant to San Fernando Police Station, they immediately left the police station and returned to their barangay.[21] While Chief Barangay Tanod Generale testified that he was the one who brought the specimen escorted by a policeman in going to the PNP Crime Laboratory,[22] perusal of the Letter Request for Laboratory Examination, indicates that it was barangay Tanod Miguel Olita who delivered the letter request to the PNP Crime Laboratory. These inconsistencies put the credibility of their testimonies in question.
Proof beyond reasonable doubt demands that unwavering exactitude be observed in establishing the corpus delicti: in every fact necessary to constitute the crime must be established. The chain of custody requirement performs this function as it ensures that doubts concerning the identity of the evidence are removed. In a long line of cases, We have considered it fatal for the prosecution to fail to prove that the specimen submitted for laboratory examination was the very one allegedly seized from the accused-appellant.
WHEREFORE, the Decision[23] dated November 10, 2009 rendered by the Regional Trial Court, Branch 17, Cebu City in Criminal Case No. CBU-80808 convicting the accused-appellant Alfie Lapayao for Violation of Section 11, Article II of R.A 9165 or the Comprehensive Dangerous Drugs Act is REVERSED and SET ASIDE. Accused-appellant Alfie Lapayao is hereby ACQUITTED of the charge against him for failure of the prosecution to prove his guilt beyond reasonable doubt.
SO ORDERED.
[*]Hernando, (Chairperson) and [*]Quijano-Padilla, JJ., concur.
[*] Acting Chairman per Office Order No. 05-14-ELDS dated February 26, 2014.
[*] Acting Junior Member per Office Order No. 472-13-ABR dated December 12, 2013.
[1] Records, pp.72-75.
[2] Records, p. 75.
[3] Records, p. 1.
[4] Records, p. 31, “Certificate of Arraignment”.
[5] Records, p. 71.
[6] Records, p. 135.
[7] Records, p. 131.
[8] Records, p. 141.
[9] G.R. No. 171487, March 14, 2008.
[10] People vs. Aspuria, 391 SCRA 404 (2002).
[11] People vs. Binad Sy Chua G.R. Nos. 136066-67, February 04, 2003 citing People v. Aruta (1998).
[12] TSN, May 19, 2008, p. 7.
[13] TSN, July 21, 2008, p.4.
[14] Exhibit “A”, Formal Offer of Exhibits, TSN, January 13, 2009, p. 2.
[15] TSN, September 16, 2008, p. 4.
[16] Exhibit “B”, Folder of Exhibits; Formal Offer of Exhibits, TSN, January 13, 2009, p.2.
[17] TSN, Sept. 16, 2008.
[18] G.R. No. 191366, December 13, 2010.
[19] G.R. No. 188900, March 5, 2010.
[20] Exhibit “C”, Chemistry Report No. D-798-2007, Folder of Exhibits.
[21] TSN, May 19, 2008, pp. 5 and 10.
[22] TSN, July 21, 2008, p. 6.
[23] Rollo, pp. 34-41.