Republic of the Philippines

Court of Appeals
Manila

PEOPLE OF THE
PHILIPPINES,
Plaintiff-Appellee,
CA-GR CR No. HC-08468
-versus- RTC BRANCH 164, PASIG
CITY
RTC Case No. 19791-92

JOSE TANG y AMAR @ FOR: VIOLATION OF

TOLITS (AT LARGE) SECTIONS 5 & 11,
WILHELMINA DIAMZON y ARTICLE II OF R.A. 9165
PRADO @ MINA,
Accused-Appellants.
x----------------------------------------x

APPELLANT’S BRIEF

BAYAUA AND ASSOCIATES LAW OFFICES

Counsel for the Accused-Appellant Wilhelmina Diamzon
3rd Floor Gonzalez Bldg., 1888 Orense Street,
Guadalupe Nuevo, Makati City

OFFICE OF THE SOLICITOR GENERAL

Counsel for the Plaintiff-Appellee
Amorosolo Street, Legaspi Village, Makati City

Page 1 of 32
 TABLE OF CONTENTS

Name of Document/Title/Subject Page/s

Affidavit of Service/Mailing 33
Parties 3
Statement of the Case 4-5
Statement of the Facts 5-11
Assignment of Error 11
11-30
Discussion 30
THE LOWER COURT ERRED IN FINDING
ACCUSED APPELLANT WILHELMINA DIAMZON
GUILTY BEYOND REASONABLE DOUBT FOR
VIOLATION OF SECTIONS 5 AND 11, ARTICLE
II OF REPUBLIC ACT NO. 9165.

PRAYER
LAW/AUTHORITIES CITED: 13
1. Section 21, Republic Act No. 9165
13-14
2. Section 21, Implementing Rules and
Regulations of Republic Act No. 9165
15-18
3. People of the Philippines v. Alberto Bacus
Alcuizar, G.R.No. 189980, 06 April 2011
18-21
4. People of the Philippines v. Edgardo Fermin y
Gregorio, G.R. No. 179344, 03 August 2011
21-22
5. Rodrigo Rontos v. People of the Philippines,
G.R. No. 188024, 05 June 2014
23-24
6. Carlito Valencia v. People of the Philippines,
G.R. No. 198804, 22 January 2014
24-27
7. Philippines v. Ramil Doria Dahil and Rommel
Castro, G.R. No. 212196, 12 January 2015
27
8. People v. Alberto, G.R. No. 179717, 05
February 2010

Page 2 of 32
 Republic of the Philippines
Court of Appeals
Manila

PEOPLE OF THE
PHILIPPINES,
Plaintiff-Appellee,
CA-GR CR No. HC-08468
-versus- RTC BRANCH 164, PASIG
CITY
RTC Case No. 19791-92

JOSE TANG y AMAR @ FOR: VIOLATION OF

TOLITS (AT LARGE) SECTIONS 5 & 11,
WILHELMINA DIAMZON y ARTICLE II OF R.A. 9165
PRADO @ MINA,
Accused-Appellants.
x----------------------------------------x

APPELLANT’S BRIEF
ACCUSED-APPELLANT WILHELMINA DIAMZON, by
counsel, unto this Honorable Court, most respectfully states:

THE PARTIES

Accused-Appellant WILHELMINA DIAMZON (hereinafter,

“Diamzon” for brevity) is of legal age, Filipino and presently
detained at the Correctional Institute for Women, Correctional
Road, Bagong Buhay, Mandaluyong City. She may be served
with processes of this Court at the address of the undersigned
counsel, at 3rd Floor Gonzalez Building, 1888 Orense
Street, Guadalupe Nuevo, Makati City.

Plaintiff-Appellee PEOPLE OF THE PHILIPPINES is

represented by the OFFICE OF THE SOLICITOR GENERAL
with address at Amorsolo Street, Legaspi Village, Makati City,
where it may be served with notices, orders and other legal
processes of this Court.

Page 3 of 32
 STATEMENT OF THE CASE

This is an appeal by Accused-appellant Diamzon from the

Judgment of the Regional Trial Court of Pasig City, Branch
164 dated 15 June 2016, in Criminal Case Nos. 19791-D and
19792-D for Violation of Sections 5 and 11 of Republic Act No.
9165.

After trial, the court a quo rendered the Judgment dated

15 June 2016, the dispositive portion of which reads as
follows:

“WHEREFORE:

1. In Criminal Case No. 19791-D, the

Court finds accused Wilhelmina P. Diamzon
alias Mina GUILTY beyond reasonable doubt of
the crime of selling shabu penalized under
Section 5, Article II of R.A. 9165, and hereby
imposed upon her the penalty of life
imprisonment and a fine of five hundred
thousand pesos (P500,000.00) with all the
accessory penalties under the law.

2. In Criminal Case No. 19792-D, the

Court finds accused Wilhelmina P. Diamzon
alias Mina GUILTY beyond reasonable doubt of
violation of Section 11, Article II of R.A. 9165,
and hereby imposed upon her an
indeterminate penalty of imprisonment from
twelve (12) years and one (1) day, as minimum,
and a fine of three hundred thousand pesos
(P300,000.00) with all the accessory penalties
under the law.

The seven (7) transparent plastic sachets

of shabu (Exhibit “N” to “T”) are hereby ordered
confiscated in favor of the government, and the
Branch Clerk of this Court is directed to turn
over the said evidence to the Philippine Drug
Enforcement Agency for destruction in
accordance with law.

Let the entire record of Criminal Case

No. 19791-D be sent to the archives it
appearing that accused JOSE TANG y AMAR
alias Tolits is still at-large. And let an alias

Page 4 of 32
 warrant be issued for the apprehension of Jose
A. Tang alias Tolits.

SO ORDERED.”

The Original Receiving Copy of the Judgment dated 15

June 20161 is hereto attached as ANNEX “1” in compliance
with the directive of this Court dated 24 August 2016.

STATEMENT OF THE FACTS

The true facts of this appealed case, contrary to the

findings of the trial court, were as follows:

On the evening of 03 December 2014, accused-appellant

Diamzon was at her house located at 867 Kamagong Street,
Napico, Barangay Mangahan, Pasig City. She was then
watching television.

While accused-appellant Diamzon was watching

television, she was surprised when several men, who later
identified themselves as police officers, suddenly barged into
her house, where one of them suddenly held her and told her
to sit down as they will conduct a search on her house as
these men were allegedly looking for someone.

Upon inquiry on who these men were looking for, one of

these men answered the accused-appellant that they were
looking for an “alias Tolits.” Accused-appellant told these
men that she did not know any “alias Tolits.” She then further
inquired if these men had a search warrant, and she was
informed that if she wanted to see the search warrant, she
should go with them. One of the men then took her shoulder
bag and forcibly dragged accused-appellant Diamzon to go
with them.

Accused-appellant Diamzon was then brought to the

barangay hall where she was presented to a barangay
Kagawad. At that time, accused-appellant Diamzon was
wearing boxer shorts without any pocket and a white shirt.

From the barangay hall, accused-appellant Diamzon was

brought by these men to the police headquarters, where said
men demanded from her the amount of Two Hundred

1
Rollo, pages 109-119

Page 5 of 32
Thousand Pesos (Php200,000.00) in order for these men to
release accused-appellant Diamzon.

When accused-appellant Diamzon refused to heed to the

demand of these me, who were later identified as police
officers, she was detained in a cell, and thereafter was
subjected to a drug test. Results of the drug tests of accused-
appellant Diamzon yielded that she was negative for shabu or
any dangerous drugs2.

After the drug test, accused-appellant Diamzon was

detained, without her recovering her shoulder bag from the
arresting police officer, containing money, jewelries and other
valuables.

She was thereafter subject to inquest proceedings before

the Office of the City Prosecutor of Pasig, where she was
charged with Violations of Sections 5 and 11, Article II of R.A.
9165.

The two (2) Information filed against accused-appellant

Diamzon respectively reads, to wit:

INFORMATION3
Criminal Case No. 19791-D

On or about December 3, 2014, in Pasig

City, and within the jurisdiction of this
Honorable Court, the accused, conspiring and
confederating together and both of them
mutually aiding one another, and not being
lawfully authorized by law, did then and there
willfully, unlawfully and feloniously sell,
deliver, and give away to PO1 Rodrigo J. Nidoy,
Jr., a police poseur buyer, one (1) heat-sealed
plastic sachet containing 0.03 gram of white
crystalline substance, which was found
positive to the tests for methamphetamine
hydrochloride, a dangerous drug, in violation of
said law.

Contrary to law.

2
Crime Laboratory Office Mandaluyong Physical Sciences Report No. DT-
718-14E dated 04 December 2014 , Rollo, Page 20
3
Rollo, pages 1-2

Page 6 of 32
 INFORMATION4
Criminal Case No. 19792-D

On or about December 3, 2014, in Pasig

City, and within the jurisdiction of this
Honorable Court, the accused, not being
lawfully authorized by law, did then and there
willfully, unlawfully and feloniously have in her
possession, custody and control six (6) heat-
sealed transparent plastic sachets each
containing the following, to wit:

1. 2RJN/MINA – 0.05 gram

2. 3RJN/MINA – 0.06 gram
3. 4RJN/MINA – 0.04 gram
4. 5RJN/ MINA – 0.04 gram
5. 6RJN/ MINA – 0.04 gram
6. 7RJN/MINA – 0.03 gram

of white crystalline substance, which were

found positive to the tests for
methamphetamine hydrochloride, a dangerous
drug, in violation of the said law.

Contrary to law.

During the arraignment, the accused respectively entered

a plea of “not guilty” to both charges 5. Joint trial on the merits
ensued.

The prosecution presented three (3) witnesses, namely:

(1) Police Senior Inspector (PSI) Joanne DC Rosales, (2) PO1
Lodjie N. Coz and (3) PO1 Rodrigo J. Nidoy, Jr.

The testimony of PSI Joanne DC Rosales, the forensic

chemist, was dispensed with considering that the prosecution
and defense entered into stipulations, as per Order dated 26
May 20156, that she was the one who examined the alleged
plastic sachets, and that the same was found positive for
shabu, and that her findings was reduced in writing – Physical
Science Report No. D-521-14F7. It was further stipulated that
PSI Rosales had no personal knowledge as to whom the
specimens she examined belonged.

4
Rollo, pages 3-4
5
Certificates of Arraignment dated 03 February 2015, Rollo, pages 39-40
6
Rollo, pages 59-60
7
Rollo, page 18

Page 7 of 32
 The testimony of PO1 Lodjie N. Cruz, the investigator of
the case, was likewise dispensed and was stipulated thereto,
as per Order dated 09 March 20168, that he received the
specimens subject of the case from Rodrigo J. Nidoy, Jr., he
prepared the Chain of Custody Form9 and Request for
Laboratory Examination10, and that he has no personal
knowledge of the origin of the shabu subject of the cases.

PO1 Rodrigo J. Nidoy, Jr., testified, to wit:

(a) At 8:00 o’ clock in the morning of 03

December 2014, a confidential informant
informed PCI Castillo about certain
activities of selling illegal drugs at Narra
Street, Napico, Barangay Manggahan, Pasig
City, by a certain tolits. Thus, a Pre-
Operation Report with Control No. 1214-
00043 dated 03 December 201411 was
prepared by PCI Castillo indicating therein
that the targets are the following: (1)
Eduardo Lolarda @ DING, (2) OREK, (3)
@OWEL STA. ANA, (4) @ Maricel GANDA,
(5) @ TOLITS, (6) @ BAROK, (7) @ BERNIE,
(8) @ TITA BABY, (9) @DJ, (10) @ VENUS,
(11) @ ABU, (12) @ BIRGO, (13) BULOY
STA. ANA, (14) @ GORYO, (15) @ JOAN,
(16) @ HAJEE.

(b) When they arrived in the target area, he

spotted accused-appellant Diamzon outside
the gate of her area. He allegedly
transacted with accused-appellant
Diamzon and the latter allegedly sold her
one plastic sachet, which allegedly tested
positive for shabu.

(c) Upon arrest of accused-appellant Diamzon,

he instructed the latter to bring out the
contents of her pocket, and allegedly she
brought out the buy-bust money from her
pocket.

8
Rollo, pages 100-101
9
Rollo, page 90
10
Rollo, page 91
11
Rollo, page 88

Page 8 of 32
 (d) Thereafter, he allegedly confiscated six (6)
plastic sachets in the possession of
accused-appellant Diamzon.

(e) He initially conducted an inventory by

marking the alleged plastic sachets
containing white crystalline substance at
the place of the alleged arrest, then later on
transferred to the barangay hall to continue
the inventory before Brgy. Kagawad Tomas
P. Gualvez.

(f) Thereafter, he brought accused-appellant

Diamzon to his office for investigation.

On cross-examination, PO1 Nidoy admitted that accused-

appellant Diamzon was not the subject of their operation. He
also admitted that during the inventory of the alleged seized
items, the same was conducted without the presence of a
representative from the media and from the Department of
Justice.

Thereafter, the prosecution rested its case.

The defense presented accused-appellant Diamzon. She

testified, inter alia that: (a) on the evening of 03 December
2014, she was inside her house watching teleserye at GMA 7,
(b) she was surprised when several armed men barged into her
house looking for a certain “Tolits”. When she answered that
she did not know of any person named “Tolits,” these armed
men dragged her out of her house and brought her to the
Barangay Hall where she was made to sign a prepared
document, which she had no opportunity to read. Thereafter,
she was brought to the police station, subjected to a drug test,
which test resulted negative for shabu, and then detained up
to present.

When asked what she was wearing that time, accused-

appellant Diamzon replied that she was wearing boxer shorts
and a white shirt. She was then confronted with pictures12
taken during her arrest and alleged inventory taking, and
accused-appellant Diamzon confirmed her outfit that time.
She, then, presented the boxer shorts, and had the same
examined by the trial prosecutor. The trial prosecutor
manifested that the said boxer shorts appears to be the same

12
Rollo, page 96

Page 9 of 32
as that appearing in the pictures13, and further manifested
thatthe same was without a pocket.

Thereafter, the defense rested its case.

On 15 June 2016, the trial court promulgated its

Judgment14, the dispositive portion of which reads, to wit:

“WHEREFORE:

3. In Criminal Case No. 19791-D, the

Court finds accused Wilhelmina P. Diamzon
alias Mina GUILTY beyond reasonable doubt of
the crime of selling shabu penalized under
Section 5, Article II of R.A. 9165, and hereby
imposed upon her the penalty of life
imprisonment and a fine of five hundred
thousand pesos (P500,000.00) with all the
accessory penalties under the law.

4. In Criminal Case No. 19792-D, the

Court finds accused Wilhelmina P. Diamzon
alias Mina GUILTY beyond reasonable doubt of
violation of Section 11, Article II of R.A. 9165,
and hereby imposed upon her an
indeterminate penalty of imprisonment from
twelve (12) years and one (1) day, as minimum,
and a fine of three hundred thousand pesos
(P300,000.00) with all the accessory penalties
under the law.

The seven (7) transparent plastic sachets

of shabu (Exhibit “N” to “T”) are hereby ordered
confiscated in favor of the government, and the
Branch Clerk of this Court is directed to turn
over the said evidence to the Philippine Drug
Enforcement Agency for destruction in
accordance with law.

Let the entire record of Criminal Case

No. 19791-D be sent to the archives it
appearing that accused JOSE TANG y AMAR
alias Tolits is still at-large. And let an alias
warrant be issued for the apprehension of Jose
A. Tang alias Tolits.

13
Rollo, pade 96
14
Rollo, pages 109-119

Page 10 of 32
 SO ORDERED.”

Accused-appellant filed her Notice of Appeal15. An Order

dated 29 June 201616 was issued by the trial court granting
the Notice of Appeal. Hence, the instant appeal.

ASSIGNMENT OF ERROR

THE LOWER COURT ERRED IN FINDING

ACCUSED APPELLANT WILHELMINA
DIAMZON GUILTY BEYOND REASONABLE
DOUBT FOR VIOLATION OF SECTIONS 5 AND
11, ARTICLE II OF REPUBLIC ACT NO. 9165.

DISCUSSION

THE LOWER COURT ERRED IN FINDING

ACCUSED APPELLANT WILHELMINA DIAMZON
GUILTY BEYOND REASONABLE DOUBT FOR
VIOLATION OF SECTIONS 5 AND 11, ARTICLE II
OF REPUBLIC ACT NO. 9165.

The arrest of accused-appellant Diamzon is a frame-up.

In fact, the alleged buy-bust operation was tainted with
irregularities, to wit:

a. The Pre-Operation Report dated 03 December

2014 with Control No. 1214-00043 17 does not include
accused-appellant Diamzon as the target of the intended
buy-bust operation.

The Pre-Operation Report dated 03 December 2014 with

Control No. 1214-0004318 clearly shows that the target of the
operation are the following (1) Eduardo Lolarda @ DING, (2)
OREK, (3) @OWEL STA. ANA, (4) @ Maricel GANDA, (5) @
TOLITS, (6) @ BAROK, (7) @ BERNIE, (8) @ TITA BABY, (9)
@DJ, (10) @ VENUS, (11) @ ABU, (12) @ BIRGO, (13) BULOY
STA. ANA, (14) @ GORYO, (15) @ JOAN, (16) @ HAJEE.

The fact that accused-appellant Diamzon was not the

target of the operation was admitted by PO1 Nidoy in his
testimony during the trial. In fact, in his Sinumpaang
15
Rollo, pages pages 126-128
16
Rollo, page 129
17
Rollo, page 14
18
Rollo, page 14

Page 11 of 32
Salaysay ng Pag-aresto19, PO1 Nidoy referred to accused-
appellant Diamzon as “alias Mina” and even marked the
allegedly seized plastic sealed sachets with the word “MINA”.
Notable, however, is that the name “@ MINA” is not among
those listed in the Pre-Operation Report dated 03 December
2014 with Control No. 1214-00043. 20

Thus, the testimony of PO1 Nidoy that he simply went

near accused-appellant Diamzon for a score is highly
unbelievable. Why would he approach someone who is not
even the target of the operation? Is it not contrary to the
professional experience of a police officer to assume that a
person, who is not the alleged target, standing near the
intended target area of operation, is likewise selling shabu? If
such is the case, the act of approaching the said person, who
might be an innocent bystander, and allegedly asking for a
“score” would alarm the potential targets and jeopardize the
entire operation. Police operatives are not this careless unless
said police officers would simply want to frame up any person,
as what happened in the instant case.

b. The inventory and photograph taking of the

alleged seized shabus were not made in the presence of
the media and a representative from the Department of
Justice, which is a requirement of Section 21 of Republic
Act No. 9165 and Section 21 of the Implementing Rules
and Regulations of Republic Act No. 9165. As can be
seen in the Inventory of Seized Items dated 03 December
201421, the same do not bear the signature of a
representative of the Department of Justice as well as a
representative of the media.

Section 21 of Republic Act No. 9165 reads, to wit:

“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
19
Rollo, pages 11-12
20
Rollo, page 14
21
Rollo, page 15

Page 12 of 32
 and/ or surrendered, for proper disposition in
the following manner:

(1) The apprehending team having initial

custody and control of the drugs shall,
immediately after seizure and confiscation,
physical 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 inventory and be given a copy thereof;

xxx”

Section 21 of the Implementing Rules and Regulations of

Republic Act No. 9165 reads, to wit:

“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 drug,
controlled precursors and essential chemicals,
as well as instruments/ paraphernalia and/ or
laboratory equipment so confiscated and/ or
surrendered, for proper disposition in the
following manner:

(a) The apprehending officer/ team

having initial custody and control of 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
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, Provided, that the
physical inventory and photograph shall be
conducted at the place where the search

Page 13 of 32
 warrant is made; or at the nearest police
station or at the nearest office of the
apprehending officer/ team, whichever is
practicable in case of warrantless seizures;
Provided, further, that non-compliance with
these requirements under justifiable grounds,
as long as the integrity and the evidentiary
value of the seized items are properly
preserved by the apprehending officer/ team,
shall not render void and invalid such seizure
of and custody over said items;

xxx”

As can be seen in the Inventory of Seized Evidence 22 and

admitted by PO1 Nidoy during his testimony, there were no
representatives from the media and a representative from
the DOJ during the inventory of the alleged shabu to
attest that indeed the arrest and subsequent confiscation
of the alleged shabu was regularly done. There is no one
among those persons required under Section 21 of Republic
Act No. 9165 who can attest that indeed the arrest was
effected legally, and the item seized was indeed shabu.
Furthermore, the Sinumpaang Salaysay ng Pag-Aresto
executed by PO1 Rodrigo J. Nidoy, Jr 23., does not bear an
explanation why there was no representative from the media
and from the Department of Justice. Evidently, there was no
compliance with the requirements laid down by Section 21
of R.A. 9165 and Section 21 of the Implementing Rules
and Regulations of R.A. 9165.

Jurisprudence is also replete that non-compliance with

the requirements of Section 21 of R.A. 9165 should result
to the acquittal of the accused.

In the case of People of the Philippines v. Alberto Bacus

Alcuizar, G.R. No. 189980, 06 April 2011, the Honorable
Supreme Court in acquitting the accused, held to wit:

“The dangerous drug itself, the shabu in

this case, constitutes the very corpus delicti of
the offense and in sustaining a conviction
under Republic Act No. 9165, the identity and
integrity of the corpus delicti must definitely be
shown to have been preserved. This
requirement necessarily arises from the illegal
22
Rollo.page 15
23
Rollo, pages11-12

Page 14 of 32
 drug's unique characteristic that renders it
indistinct, not readily identifiable, and easily
open to tampering, alteration or substitution
either by accident or otherwise. Thus, to
remove any doubt or uncertainty on the
identity and integrity of the seized drug,
evidence must definitely show that the illegal
drug presented in court is the same illegal
drug actually recovered from the accused-
appellant; otherwise, the prosecution for
possession under Republic Act No. 9165 fails.

The chain of custody rule requires that

the marking of the seized items should be done
in the presence of the apprehended violator
and immediately upon confiscation to ensure
that they are the same items that enter the
chain and are eventually the ones offered in
evidence. In Lopez v. People citing Catuiran v.
People, this Court held that:

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. Indeed, it is from the
testimony of every witness who handled the
evidence from which a reliable assurance can
be derived that the evidence presented in court
is one and the same as that seized from the
accused.

The aforesaid step initiates the process of

protecting innocent persons from dubious and
concocted searches, and of protecting as well
the apprehending officers from harassment
suits based on planting of evidence and on
allegations of robbery or theft.

Page 15 of 32
 Appellant cites the failure of the police
officer to mark the evidence immediately after
purportedly taking it from him. This omission,
appellant contends, renders the chain of
custody dubious.

xxx

In People v. Garcia, the Court

enumerated several cases dealing with the
legal repercussions of failing to comply with
Section 21 of Republic Act No. 9165, thus:

In People v. Orteza, the Court, in

discussing the implications of the failure to
comply with Paragraph 1, Section 21, Article II
of R.A. No. 9165, declared:

In People v. Laxa, where the buy-bust

team failed to mark the confiscated marijuana
immediately after the apprehension of the
accused, the Court held that the deviation
from the standard procedure in anti-narcotics
operations produced doubts as to the origins of
the marijuana. Consequently, the Court
concluded that the prosecution failed to
establish the identity of the corpus delicti.

The Court made a similar ruling in People

v. Kimura, where the Narcom operatives failed
to place markings on the seized marijuana at
the time the accused was arrested and to
observe the procedure and take custody of the
drug.

More recently, in Zarraga v. People, the

Court held that the material inconsistencies
with regard to when and where the markings
on the shabu were made and the lack of
inventory on the seized drugs created
reasonable doubt as to the identity of the
corpus delicti. The Court thus acquitted the
accused due to the prosecution's failure to
indubitably show the identity of the shabu.

We reached the same conclusion in

People v. Nazareno and People v. Santos, Jr.,

Page 16 of 32
 and recently, in the cases of People v. Dela
Cruz and People v. De la Cruz where we again
stressed the importance of complying with the
prescribed procedure. We also held that strict
compliance is justified under the rule that
penal laws shall be construed strictly against
the government, and liberally in favor of the
accused.

xxx

Verily, the failure of the police officers to

mark the dangerous drugs immediately after
their seizure and the vague recollection of
SPO1 Agadier concerning the custody of the
drugs from the residence of appellant up to the
time it was submitted to the crime laboratory
constitute a huge and significant gap in the
chain of custody which substantially affects
the identity of the corpus delicti.

To successfully prosecute a case of illegal

possession of dangerous drugs, the following
elements must be established: (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; and (3)
the accused freely and consciously possessed
the said drug.

The Court of Appeals ruled that appellant

is presumed to have been in possession of the
prohibited drugs when they were found in his
house. While this presumption may be true, it
is certainly not conclusive and may be
rebutted by contrary evidence. It is worthy to
reiterate that this Court entertains serious
doubts as to whether the prohibited drugs
were indeed found in appellant’s house
considering that there were no other witnesses
presented to prove it. And it is by the same
doubt that constrains this Court to acquit
appellant.”

Likewise, in the case of People of the Philippines v.

Edgardo Fermin y Gregorio, G.R. No. 179344, 03 August 2011,
the Supreme Court in acquitting the accused, held to wit:

Page 17 of 32
 “The defense’s main argument is whether
or not there was really a buy-bust operation on
9 July 2003. While we are not in total
agreement with all the submissions of the
defense, this Court is reversing the ruling of
the lower courts and now acquits the two
accused of the crime charged.

In a prosecution for illegal sale of

dangerous drugs, the following elements must
be proven: (1) that the transaction or sale took
place; (2) that the corpus delicti or the illicit
drug was presented as evidence; and (3) that
the buyer and seller were identified. The
presence of these elements is sufficient to
support the trial court’s finding of appellants’
guilt. What is material is the proof that the
transaction or sale actually took place, coupled
with the presentation in court of the prohibited
or regulated drug. The delivery of the
contraband to the poseur-buyer and the
receipt of the marked money consummate the
buy-bust transaction between the entrapping
officers and the accused. The presentation in
court of the corpus delicti — the body or
substance of the crime – establishes the fact
that a crime has actually been committed.

We have repeatedly held that the trial

court’s evaluation of the credibility of
witnesses and their testimonies is entitled to
great respect and will not be disturbed on
appeal. However, this is not a hard and fast
rule. We have reviewed such factual findings
when there is a showing that the trial judge
overlooked, misunderstood, or misapplied
some fact or circumstance of weight and
substance that would have affected the case.

Cognate to this, while the entrenched

rule is that the assessment of witnesses and
their testimonies is a matter best undertaken
by the trial court which had the opportunity to
observe the demeanor, conduct or attitude of
the witnesses, the findings of the lower court
on this point will be reversed on appeal, if it
overlooked substantial facts and

Page 18 of 32
 circumstances which, if considered, would
materially affect the result of the case.

This Court believes that on application of

the rule to the testimonies of the prosecution
witnesses, the exception to the high value of
the trial court’s findings surfaces. We find
irreconcilable conflicts in the recollections
about the principal factum probandum which
is the buy-bust itself. The varying versions
about the pre-operation, the illegal sale itself
and the immediately preceding actions put
doubts about what really transpired on 9 July
2003.

xxx

Strict compliance with the prescribed

procedures is required because of the unique
characteristic of illegal drugs, rendering them
indistinct, not readily identifiable, and easily
open to tampering, alteration or substitution
either by accident or otherwise. Hence, we
have the rules on the measures to be observed
during and after the seizure, during the
custody and transfer of the drugs for
examination, and at all times up to their
presentation in court.

While Section 21(a) of the Implementing

Rules and Regulations of Republic Act No.
9165 excuses non-compliance with the afore-
quoted procedure, the same holds true only for
as long as the integrity and evidentiary value
of the seized items are properly preserved by
the apprehending officers. Here, the failure of
the buy-bust team to comply with the
procedural requirements cannot be excused
since there was a break in the chain of custody
of the substance taken from appellant. It
should be pointed out that the identity of the
seized substance is established by showing its
chain of custody.

The following are the links that must be

established in the chain of custody in a buy-
bust situation: first, the seizure and marking,
if practicable, of the illegal drug recovered from

Page 19 of 32
 the accused by the apprehending officer;
second, the turnover of the illegal drug seized
by the apprehending officer to the investigating
officer; third, the turnover by the investigating
officer of the illegal drug to the forensic
chemist for laboratory examination; and
fourth, the turnover and submission of the
marked illegal drug seized from the forensic
chemist to the court.

As provided by the implementing rules

and jurisprudence, strict compliance of the
requisites under Section 21 of Republic Act No.
9165 can be disregarded as long as the
evidentiary value and integrity of the illegal
drug are properly preserved; and its
preservation can be well established if the
chain of custody of illegal drug was unbroken.
The break is clear in this case.

It must be noted that the police officer

who had the initial custody and control of the
illegal drug was not clearly identified. In the
preceding discussion on the inconsistency in
the statements of PO2 Ibasco and PO2 Pascua,
it was pointed out that PO2 Ibasco admitted
that he was in possession of the confiscated
drug, but this was contradicted by PO2 Pascua
who testified that he was the one who was in
possession of the illegal drug which was the
subject of sale when it was brought to the
police station.

The fundamentals of a criminal

prosecution were, indeed, disregarded. In
considering a criminal case, it is critical to
start with the law’s own starting perspective on
the status of the accused – in all criminal
prosecutions, he is presumed innocent of the
charged laid unless the contrary is proven
beyond reasonable doubt. The burden lies on
the prosecution to overcome such presumption
of innocence by presenting the quantum of
evidence required. To repeat, the prosecution
must rest on its own merits and must not rely
on the weakness of the defense. And if the
prosecution fails to meet the required amount
of evidence, the defense may logically not even

Page 20 of 32
 present evidence on its own behalf. In which
case, the presumption prevails and the
accused should necessarily be acquitted.

The prosecution failed to prove beyond

reasonable doubt the guilt of the two accused.
The rule that high respect must be accorded
the lower courts in their findings of facts
cannot be misused to diminish the required
evidence to overcome the presumption of
innocence of the accused as guaranteed by the
Constitution.”

In the case of Rodrigo Rontos v. People of the Philippines,

G.R. No. 1880024, 05 June 2013, the Honorable Supreme
Court held:

“However, on the basis of the

nonobservance of the rules of procedure for
handling illegal drug items, we resolve to
acquit petitioner on the ground of reasonable
doubt.

In illegal drugs cases, the identity and

integrity of the drugs seized must be
established with the same unwavering
exactitude as that required to arrive at a
finding of guilt. The case against the accused
hinges on the ability of the prosecution to
prove that the illegal drug presented in court is
the same one that was recovered from the
accused upon his arrest.

The procedure set forth in Section 21 of

R.A. 9165 is intended precisely to ensure the
identity and integrity of dangerous drugs
seized. This provision requires that upon
seizure of illegal drug items, the apprehending
team having initial custody of the drugs shall
(a) conduct a physical inventory of the drugs
and (b) take photographs thereof (c) in the
presence of the person from whom these items
were seized or confiscated and (d) a
representative from the media and the
Department of Justice and any elected public
official (e) who shall all be required to sign the
inventory and be given copies thereof.

Page 21 of 32
 This Court has emphasized the import of
Section 21 as a matter of substantive law that
mandates strict compliance. It was laid down
by Congress as a safety precaution against
potential abuses by law enforcement agents
who might fail to appreciate the gravity of the
penalties faced by those suspected to be
involved in the sale, use or possession of illegal
drugs. Under the principle that penal laws are
strictly construed against the government,
stringent compliance therewith is fully
justified.

Here, the procedure was not observed at

all. Where it is clear that Section 21 was not
observed, as in this case, such noncompliance
brings to the fore the question of whether the
illegal drug items were the same ones that
were allegedly seized from petitioner.”

In the instant case, there is no dispute that the Inventory

and marking of the seized shabu was made without the
presence of the media and a representative of the Department
of justice. Thus, there is no issue as to the non-compliance
with the requirements of Section 21 of R.A. 9165 and Section
21 of the Implementing Rules and Regulations of R.A. 9165.

In the case of Carlito Valencia v. People of the Philippines,

G.R. No. 198804, 22 January 2014, the Honorable Supreme
Court held:

“Although the Court has ruled that non-

compliance with the directives of Section 21,
Article II of R.A. No. 9165 is not necessarily
fatal to the prosecution’s case, the prosecution
must still prove that (a) there is a justifiable
ground for the non-compliance, and (b) the
integrity and evidentiary value of the seized
items were properly preserved. Further, the
non-compliance with the procedures must be
justified by the State’s agents themselves. The
arresting officers are under obligation, should
they be unable to comply with the procedures
laid down under Section 21, Article II of R.A.
No. 9165, to explain why the procedure was
not followed and prove that the reason
provided a justifiable ground. Otherwise, the
requisites under the law would merely be fancy

Page 22 of 32
 ornaments that may or may not be disregarded
by the arresting officers at their own
convenience.

Thus, in People v. Almorfe, the Court

stressed that:

Respecting the team’s non-compliance

with the inventory, not to mention the
photograph, requirement of R.A. No. 9165, the
same does not necessarily render void and
invalid the seizure of the dangerous drugs.
There must, however, be justifiable grounds to
warrant exception herefrom, and provided that
the integrity and evidentiary value of the seized
items are properly preserved by the
apprehending officer/s.

For the saving clause to apply, it is

important that the prosecution should explain
the reasons behind the procedural lapses and
that the integrity and value of the seized
evidence had been preserved:

x x x [N]on-compliance with the strict

directive of Section 21 of R.A. No. 9165 is not
necessarily fatal to the prosecution’s case;
police procedures in the handling of
confiscated evidence may still have lapses, as
in the present case. These lapses, however,
must be recognized and explained in terms of
their justifiable grounds and the integrity and
evidentiary value of the evidence seized must
be shown to have been preserved.

The arresting officers in this case

tendered no justification in court for their non-
compliance with the procedures. Indeed, a
thorough perusal of the records of this case
yielded no result as to any explanation or
justification tendered by the apprehending
officers as regards their non-compliance
with the procedures laid down under
Section 21, Article II of R.A. No. 9165. It
was thus a grave error for the RTC and the CA
to rule that there was an unbroken chain of
custody despite the failure of the arresting
officers to mark the confiscated plastic sachets

Page 23 of 32
 in the presence of Valencia and to identify all
the individuals who took custody of the same
from the time the said plastic sachets were
confiscated until the time they were presented
in the RTC.”

(Emphasis and underscoring supplied)

In the instant case, a perusal of the Sinumpaang

Salaysay ng Pag-Aresto executed by PO1 Rodrigo J. Nidoy 24
would reveal that PO1 Nidoy as the arresting officer and the
one who conducted the marking and the inventory did not
make any justification as to why there was no compliance with
the requirements of Section 21 of R.A. 9165 as to the presence
of a media and a representative of the DOJ. He also admitted
during his testimony that indeed there was no media and
representative from the DOJ, but offered no justification for
their absence.

In the case of People of the Philippines v. Ramil Doria

Dahil and Rommel Castro, G.R. No. 212196, 12 January 2015,
the Honorable Supreme Court held:

“xxx

The strict procedure under Section 21 of

R.A. No. 9165 was not complied with.

Although the prosecution offered

inevidence the Inventory of the Property Seized
signed by the arresting officers and Kagawad
Pamintuan, the procedures provided in Section
21 of R.A. No. 9165 were not observed. The
said provision requires the apprehending team,
after seizure and confiscation, to immediately
(1) conduct a physically inventory; and (2)
photograph the same in the presence of the
accused or the person/s from whom such
items were confiscated and/orseized, or
his/her representative or counsel, a
representative from the media and the DOJ,
and any elected public official who shall be
required tosign the copies of the inventory and
be given a copy thereof.

xxx

24
Rollo, Pages 11-12

Page 24 of 32
 Notwithstanding the failure of the
prosecution to establish the rigorous
requirements of Section 21 of R.A. No. 9165,
jurisprudence dictates that substantial
compliance is sufficient. Failure to strictly
comply with the law does not necessarily
render the arrestof the accused illegal or the
items seized or confiscated from him
inadmissible. The issue of non-compliance
with the said section is not of admissibility,
but of weight to be given on the evidence.
Moreover, Section 21 of the IRR requires
"substantial" and not necessarily "perfect
adherence," as long as it can be proven that
the integrity and the evidentiary value of the
seized items are preserved as the same would
be utilized in the determination of the guilt or
innocence of the accused.

To ensure that the integrity and the

evidentiary value of the seized items are
preserved, the proper chain of custody of the
seized items must be shown. The Court
explained in People v. Malillin how the chain of
custody or movement of the seized evidence
should be maintained and why this must be
shown by evidence, viz:

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

Page 25 of 32
 and no opportunity for someone not in the
chain to have possession of the same.

In People v. Kamad, the Court identified

the links that the prosecution must establish
in the chain of custody in a buy-bust situation
to be as follows: first, the seizure and marking,
if practicable, of the illegal drug recovered from
the accused by the apprehending officer;
second, the turnover of the illegal drug seized
by the apprehending officer to the investigating
officer; third, the turnover by the investigating
officer of the illegal drug to the forensic
chemist for laboratory examination; and
fourth, the turnover and submission of the
marked illegal drug seized by the forensic
chemist to the court.

xxx

The case of People v. Gutierrez also had

inadequate stipulations as to the testimony of
the forensic chemist. No explanation was given
regarding the custody of the seized drug in the
interim - from the time it was turned over to
the investigator up to its turnover for
laboratory examination. The records of the
said case did not show what happened to the
allegedly seized shabu between the turnover by
the investigator to the chemist and its
presentation in court. Thus, since there was
no showing that precautions were taken to
ensure that there was no change in the
condition of that object and no opportunity for
someone not in the chain to have possession
thereof, the accused therein was likewise
acquitted.”

In the case at bar, it is worth reiterating that there was

non-compliance with the requirement on the presence of the
media and a representative from the DOJ during the marking
and inventory taking. Also worth emphasizing is the fact that
at the inventory taking, it was only PO1 Nidoy who conducted
the same and in the presence only of a Barangay Kagawad.
The said Barangay Kagawad, however, did not testify to
authenticate the acts of marking and inventory made by PO1
Nidoy. This alone would affect the integrity of the evidence as
there is no other person to attest as to the handling of the

Page 26 of 32
seized shabu from the time they were confiscated from
accused-appellant Diamzon until the inventory taking.

Furthermore, there was no witness who corroborated the

testimony of PO1 Nidoy as to how he handled the seized shabu
from the time he left the place of inventory until the same was
turned over to the investigator, PO1 Lodjie Coz.

While the testimonies of PO1 Coz (Investigator) and PSI

Rosales (Forensic Chemist) were stipulated on, there was no
stipulation as to the precautions taken to ensure that there
was no change in the condition of the seized shabu and no
opportunity for someone not in the chain to have possession
thereof.

Although accused-appellant Diamzon interposed the

defense of “denial,” the same is not necessarily weak.

In the case of People v. Alberto, G.R. No. 179717, 05

February 2010, the Honorable Supreme Court held that:

"A defense of denial which is unsupported

and unsubstantiated by clear and convincing
evidence becomes negative and self-serving,
deserving no weight in law, and cannot be
given greater evidentiary value over convincing,
straight forward and probable testimony on
affirmative matters."

In the present case, the denial of the accused as to the

alleged charges, is supported by clear and convincing
evidence.

It is worthy to point out that in the Sinumpaang Salaysay

ng Pag-aresto executed by PO1 Rodrigo J. Nidoy, Jr. 25 and in
his direct testimony, he declared that accused-appellant
Diamzon took out the buy-bust money from her shorts.

Thus, in the testimony of accused-appellant Diamzon,

she presented the boxer shorts she was wearing at the time of
her arrest. After pictures at the time of the arrest were shown
to the prosecutor as well as the boxer shorts presented by the
accused-appellant, the prosecutor manifested that the boxer
shorts appears to be the same as that in the pictures.26

25
Rollo, pages 11-12
26
Rollo, page 22

Page 27 of 32
 The more pertinent portions of the Manifestation of the
Prosecutor and testimony of accused-appellant Diamzon as
appearing in the Transcript of Stenographic Notes in the
hearing dated 13 April 2016 are herein quoted, to wit:

Page 6

“Q: By the way, Miss witness, what

were you wearing that night of December 3,
2014?

A: I was wearing sleep wear.

Q: Could you describe what you

were wearing that time, Miss witness?

A: I was wearing boxer shorts and t-

shirts.

Page 7

Q: I am showing you a picture

marked as Exhibits “K”, “K-1” and “K-2”, could
you look at this pictures and tell this court if
this is the clothes you were wearing on the
night of December 3, 2014?

PROS. ORIBE:

May I object, your Honor, to the

presentation of the photograph because there
was no basis, your Honor.

COURT:

Whose picture is that? Because you

mentioned Exhibits “K” and “K-1”.

ATTY. ROMAN:

Yes, your honor.

COURT:

That was your documentary evidence,

prosec during the inventory?

PROS. ORIBE:

Page 28 of 32
 Yes, your Honor.

COURT:

Alright, answer now.

PROS. ORIBE:

I’m withdrawing my objection, your

Honor.

WITNESS:

A. Yes, ma’am.

Page 8

ATTY. ROMAN:

Q: Based on the accusation of the

arresting officers against you Miss witness, he
instructed you to take out from your pocket
the money allegedly given to you on December
3, 2014. What can you say about this
allegation?

A: That allegation is not true

because my shorts I was wearing that night
has no pockets.

Q: Do you have that shorts with

your right now, Miss witness?

A: Yes, ma’am.

COURT INTERPRETER:

The witness has produced and exhibiting

boxer shorts color pink with treat or trick
Holloween pictures.

ATTY. ROMAN:

May I request, your Honor, the

examination of the shorts by the prosecution
just to show and compare with the pictures
your Honor.

Page 29 of 32
 PROS. ORIBE:

The printing appears to be the same, but

I cannot determine, your Honor, if there was
not pocket. Although, the one presented has
no pockets, but the pictures does not depict
only the printing of the short pants.

xxx”

Based on the stipulation, the boxer shorts presented

before the trial court had the same printing as that in the
pictures, and the one presented before the trial court had
no pockets.

This boxer evidence alone is clear and convincing

evidence that accused-appellant Diamzon was not subject
to a legitimate buy-bust operation but was a victim of a
frame up. The said evidence negates the testimony of PO1
Nidoy that the alleged buy bust money came from the
pocket of the shorts of accused-appellant Diamzon, as
clearly the shorts worn as shown by the pictures27 and the
object evidence itself had no pocket at all.

All told, the accused should be acquitted.

PRAYER

WHEREFORE, premises considered, it is respectfully

prayed that the Judgment dated 15 June 2016 rendered by
teh Regional Trial Court of Pasig City, Branch 65 be
REVERSED and SET ASIDE and a new one be entered
ACQUITTING Accused-Appellant Wilhelmina Diamzon, and
thereafter ordering her release from detention.

Other reliefs, just and equitable under the circumstances

are likewise prayed for.

07 October 2016, Makati City for Manila.

BAYAUA AND ASSOCIATES LAW OFFICE

Counsel for Accused-Appellant Wilhelmina Diamzon
Third Floor Gonzalez Building,

27
Rollo, page 22

Page 30 of 32
 No. 1888 Orense Street,
Guadalupe Nuevo, Makati City
Tel Nos. (02) 750-4439; (02)881-7629

by:

ATTY. JORICO FAVOR BAYAUA

IBP No. 09572/ 01-13-11 Makati City
PTR No. 5330802/ 01-08-16 Makati City
Roll No. 47842
MCLE Compliance No. IV-0009973
December 5, 2012

Copy Furnished:

OFFICE OF THE SOLICITOR GENERAL

Counsel for the People of the Philippines
Amorsolo Street, Legaspi Village,
Makati City

REGIONAL TRIAL COURT OF PASIG CITY

BRANCH 65
Hall of Justice, Pasig City

EXPLANATION

That the foregoing Appellant’s Brief is being served

through registered mail with return card due to distance and
lack of manpower to effect personal service.

JORICO FAVOR BAYAUA

Page 31 of 32
Page 32 of 32