People v. Posada

Facts:

Accused-appellants Roger Posada and Emily Posada were convicted by the RTC Branch 43, Virac, Catanduanes, in Criminal Case No. 3490 for selling 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.

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 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.

Aggrieved by the RTC Decision, the accused-appellants filed an appeal before the Court of Appeals (CA) which, via a Decision 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.

Issue:

I. Whether or not 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. Whether or not the court a quo gravely erred in convicting the accused-appelants despite the prosecution's failure to prove their guilt beyond reasonable doubt.

Held:  

On the first factual issue, the Court found 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. 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. PO1 Area prepared on the same day an RPS in the presence of Asuncion, Kagawad Sarmiento and Vargas. On August 4, 2005, 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 PO2 Abanio and P/Insp. Sta. Cruz on the same date.

Nothing in it would show that P/CI Tria 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. 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 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.

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. 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. 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, the Court 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.

On the second factual issue, the Court found the accused-appellants' claim not supported by evidence.

A review of the defense-quoted testimony of PSI Clemen would show that accused-appellants received one piece of small size heat-sealed transparent plastic sachet with marking R, 12 pieces small size heat-sealed marked as R-1 to R-12 and one small size crumpled aluminum foil and small size plastic sachet totaling to 15 items. PSI Clemen's testimony tallies with the Laboratory Examination Request of P/CI Tria.

Evidence shows no discrepancy as to the number of plastic sachets recovered from the accused-appellants and those submitted to forensic chemist PSI Clemen.

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), P/CI Tria took pictures of the incident using his cellphone while the official photographer was also taking pictures. Then PO1 Area prepared an RPS, which Asuncion, Sarmiento and Vargas witnessed. Meanwhile, SPO1 Aldave, seizing officer went inside the house of the accused-appellants, prepared and signed an RPS after the raiding team found a piece of aluminum foil, one plastic sachet containing residue of white crystalline substance, one small pair of green scissors beside the bed inside a room, 15 pieces of used lighters, and two pieces of P50.00 bill and one piece of P100.00 bill. Asuncion, Arcilla and Gonzales witnessed the preparation and signing of the said RPS. Thereafter, on August 4, 2005, P/CI Tria requested for a laboratory examination of a piece of small size heat-sealed transparent plastic sachet, containing white crystalline substance; 12 pieces of small size heat sealed transparent plastic sachets, containing white crystalline; 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 and P/Insp. Sta. Cruz. Subsequently, witness PSI Clemen, the forensic expert, received personally from PO2 Abanio the above-mentioned marked pieces of evidence. She then immediately conducted a laboratory examination, yielding a result that the 12 pieces of plastic sachets, the one heat-sealed transparent plastic sachet with marking R and the one aluminum foil strip contained methamphetamine hydrochloride. In open court, the above-mentioned pieces of evidence were identified and marked.

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, 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.

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.

There was 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. 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.

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 or when an essential element of the crime has not been sufficiently alleged. 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. 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. 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 ([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.

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, the Court 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.

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. 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 ofshabu. 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. 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. 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.

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.

Emily and Roger were found in possession of 12 sachets of shabu.

In United States v. Juan, the Court have clarified the meaning of the words having possession of. The Court 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. 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.

The 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 the Court have to take care of our children and the family where each of us belongs, the Court are obligated to put in jail all those, including fathers and mothers, who peddle illegal drugs.

The Court emphasized 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.

Dispositive:

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.