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-versus- -f o r-
-versus- -f o r-
ORDER
For resolution is the Demurrer to Evidence dated May 18, 2018 filed by
the accused on the ground of the insufficiency of prosecution’s evidence to
establish his guilt beyond reasonable doubt.
THE CHARGE
R-ANG-16-00862-CR
1
Records, pp. 1.
ORDER Page 2 of 11
PP vs. VICTOR TELMO y IMPAS
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R-ANG-16-03095-CR
During pre-trial, the prosecution and defense entered into the following
stipulations:
1. That the person who issued the Chemistry Report did not
have any personal knowledge as from whom, where and how
these objects were seized or collected.
PROSECUTION’S EVIDENCE
2
Exhibit “A”
ORDER Page 3 of 11
PP vs. VICTOR TELMO y IMPAS
x--------------------------------------------x
illegal drug operation ensued. During the briefing he was tasked by PCI
Rainer Mercado to act as a poseur buyer. They used his own Php 5003 to
buy the drugs since no money was available at that time. He then marked
the money with the accused’s initials “RBR”. After the civilian informant told
them that a certain Romy was selling drugs they were able to verify the
alleged drug dealer’s true name which was Romeo Bato Roperos because
he was subjected to Tokhang. During the briefing the civilian texted the
accused if they could meet to which Romeo replied and advised them to
proceed to his house at Airwolf Village, Purok 9, Brgy. Pulung Maragul,
Angeles City.
With PO2 Villanueva serving as backup together with four other team
members and the informant they headed to the target area. The informant
then introduced him to Romeo as his friend who was an OFW and a buyer of
illegal drugs He then handed the Php 500 marked money.
After handing the Php 500 bill Romeo then handed him a plastic sachet
which containing suspected shabu. Upon receiving the sachet he then
scrathed his left shoulder as a pre-arranged signal. His backup PO2
Velasquez then approached to help with the arrest. He then conducted a
body search and was able to retrieve from Romeo another Php 500 bill and
another five transparent plastic sachets from his right pocket. PO2 Villanueva
then appraised Romeo of his constitutional rights.
He then marked the confiscated evidence as FB for the sachet that was
sold to him and FB1, FB2, FB3, FB4, FB5 and FB6 for the other confiscated
sachets.4 The same were marked in the crime scene in front of the suspect
and his wife who were in front of him at the time.
They then went to the Police Station 5 for proper inventory because it
was already dark. They then summoned the barangay and media
representatives to signed the prepared Confiscation Receipt and then
proceeded to the DOJ representative to sign the Confiscation Receipt.5
Afterwards, they went back to the police station to request for a crime lab
examination.6
Delivery of the sachets to the crime lab were made by him and PO2
Velasquez. The results of the crime lab tested positive for Methamphetamine
Hydrochloride.7
3
Exhibit “J”
4
Exhibit “K”
5
Exhibit “I”
6
Exhibit “G-H”
7
Exhibit “E-F”
8
Exhibit “A”
9
Exhibit “B”
10
Exhibit “D”
11
Exhibit “C”
ORDER Page 4 of 11
PP vs. VICTOR TELMO y IMPAS
x--------------------------------------------x
R-ANG-16-00862-CR
R-ANG-16-00863-CR
12
Exhibit “E-F”
13
Exhibit “J”
14
Exhibit “H”
15
Exhibit “I”
16
Exhibit “G”
17
Section 2, Rule 133 of the Rules of Court.
18
Section 14, paragraph 2, Article III (Bill of Rights) of the 1987 Philippine Constitution.
19
People vs. Bio, G.R. No. 195850, February 16, 2015, 753 SCRA 730.
20
People vs. Punzalan, G.R. No. 199087, November 11, 2015, 774 SCRA 653; People vs. Posada, G.R. No.
196052, September 02, 2015; People vs. Bolo, G.R. No. 200295, August 19, 2015, 767 SCRA 591; People vs.
Miranda, G.R. No. 209338, June 29, 2015, 760 SCRA 578; People vs. Mercado, 753 SCRA 167.
ORDER Page 5 of 11
PP vs. VICTOR TELMO y IMPAS
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21
People vs. Suan, G.R. No. 184546, February 22, 2010.
22
People vs. Junaide, G.R. No. 193856, April 21, 2014, 722 SCRA 320.
23
People vs. Gayoso, G.R. No. 206590, March 27, 2017.
24
People vs. Barte, G.R. No. 179749, March 1, 2017; People vs. Villarta, 781 SCRA 497.
25
G.R. No. 189296, March 11, 2015, 752 SCRA 531.
26
People vs. Breis, G.R. No. 205823, August 17, 2015, 767 SCRA 40; People vs. Alagarme, G.R. No.
184789, February 23, 2015, 751 SCRA 317; People vs. Villarta, G.R. No. 205610, July 30, 2014 731 SCRA
40; People vs. Langua, 690 SCRA 123.
27
G.R. No. 185166, January 26, 2011, 640 SCRA 635.
ORDER Page 6 of 11
PP vs. VICTOR TELMO y IMPAS
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28
People vs. Viterbo, G.R. No. 203434, July 22, 2014; People vs. Martinez G.R. No. 191366, December 13,
2010; People vs. Abetong, G.R. No. 209785, June 4, 2014, 725 SCRA 304.
29
576 Phil. 576, 587 (2008).
ORDER Page 7 of 11
PP vs. VICTOR TELMO y IMPAS
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In People vs. Beran,30 it was clearly held that the prosecution bears the
burden of proving justifiable cause for non-compliance with the requirements
under Section 21 of R.A. 9165.
Verily, the inventory, if any, was not done in the presence of the
barangay official, DOJ and Media representative as mandated by Section 21
of R.A. 9165.
“The failure to follow the procedure mandated under R.A. No. 9165 and
its IRR must be adequately explained. The justifiable ground for non-
compliance must be proven as fact.”
30
G.R. No. 203028, January 15, 2014.
31
People vs. Dela Cruz, G.R. No. 205821, October 1, 2014.
32
Exhibit “I”
33
G.R. No. 230065, March 14, 2018
34
G.R. No. 186498, March 26, 2010
ORDER Page 8 of 11
PP vs. VICTOR TELMO y IMPAS
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In People vs. Beran35 it was clearly held that the prosecution bears the
burden of proving justifiable cause for non-compliance with the requirements
under Section 21 of R.A. 9195
With the failure to conduct the required physical inventory the police officers
failed to follow the chain of custody rule in handling of the sold or seized
drugs in order to preserve their identity and evidentiary rule. Non-compliance
is tantamount to failure in establishing identity of corpus delicti, an essential
element of the prosecution of illegal sale or possession of dangerous drugs.36
What Section 21 of R.A. No. 9165 and its implementing rule do not
expressly specify is the matter of marking of the seized items in warrantless
seizure to ensure that the evidence seized upon apprehension is the same
evidence subjected to inventory and photography when these activities are
undertaken at the police station rather than at the place of arrest.
Consistency with the “chain of custody” rule, however, requires that the
marking of the seized items to truly ensure that they are the same items that
enter the chain and are eventually the ones offered in evidence should be
done (1) in the presence of the apprehended violator (2) immediately upon
confiscation.40
precautions taken to ensure that there had been no change in the condition
of the items and no opportunity for someone not in the chain to have
possession of the item.
In the case at bar, the prosecution’s lone witness testified that the
marking was done at the crime scene the in front the accused and the latte’s
wife The lone witness also testified that there were no photographs taken
depicting the accused and the subject item at the scene of the crime.
Aside from the lone testimony of the witness, there is nothing that prove
the marking was done in the presence of the accused. Hence, the marking
conducted did not comply with the required chain of custody rule in order to
preserve the identity and integrity of both the sold and confiscated items as
evidence against him.
In the fresh case of People vs. Año44 citing People vs. Larry Mendoza45,
the Court underscored the importance of the attendance of the accused and
the material witnesses during marking of evidence.
Moreover, on the second link, which is the turnover of the seized drugs
by the confiscating officer to the Investigating officer, the prosecutions lone
witness testified that he merely showed the pieces of evidence to the
investigator, SPO4 Edgar B. Avillon and that he never surrendered the
custody of the subject items to the latter. This was also the gist of the
testimony of the investigator SPO4 Edgar Avillon by way of stipulations
entered into by the prosecution and the defense on 09 May 2018.
“Usually, the police officer who seizes the suspected substance turns
it over to a supervising officer, who will then send it by courier to the police
crime laboratory for testing.42 This is a necessary step in the chain of
custody because it will be the investigating officer who shall conduct the
proper investigation and prepare the necessary documents for the
developing criminal case. Certainly, the investigating officer must have
possession of the illegal drugs to properly prepare the required documents.”
44
G.R. No. 230070, March 14, 2018.
45
G.R. No. 192432, June 23, 2014.
46
G.R. No. 212196, January 12, 2015.
ORDER Page 10 of 11
PP vs. VICTOR TELMO y IMPAS
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As to the fourth link, the prosecution and defense decided to enter into
stipulations regarding with the testimony of the Forensic Chemist and it was
not stipulated as to how the Forensic Chemist kept the seized shabu until it
was transferred to this Court. It was not presented how to how the object
evidence was preserved after Forensic Chemist conducted his examination
on the specimen. As held in the case of People v. Dahil, 47 it was ruled that
forensic chemist should have personally testified on the safekeeping of the
drugs.
The last link involves the submission of the seized drugs by the forensic
chemist to the court when presented as evidence in the criminal case. No
testimonial or documentary evidence was given whatsoever as to how
the drugs were kept while in the custody of the forensic chemist until it
was transferred to the court. The forensic chemist should have personally
testified on the safekeeping of the drugs but the parties resorted to a general
stipulation of her testimony. Although several subpoena were sent to the
forensic chemist, only a brown envelope containing the seized drugs
arrived in court. Sadly, instead of focusing on the essential links in the
chain of custody, the prosecutor propounded questions concerning the
location of the misplaced marked money, which was not even
indispensable in the criminal case.
All told, the failure of the prosecution to establish the evidence’s chain
of custody is fatal to its case as the Court can no longer consider, or even
safely assume that the integrity and evidentiary value of the purchased or
confiscated dangerous drugs were properly preserved.48
47
G.R. No. 212196, January 12, 2015
48
People vs. Constantino, Jr., G.R. No. 199689, March 12, 2014, 719 SCRA 177.
49
People vs. Maraorao, G.R. No. 174369, June 20, 2012.
50
People vs. Santos, G.R. No. 175593, October 17, 2007.
51
G.R. No. 183700, October 13, 2014.
ORDER Page 11 of 11
PP vs. VICTOR TELMO y IMPAS
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In view thereof, the Warden of the Angeles City District Jail is directed
to release ROMEO BATO ROPEROS from detention immediately upon
receipt hereof, unless he is being detained for some other lawful cause/s.
SO ORDERED.
(ejrc)