Republic of the Philippines

REGIONAL TRIAL COURT

Second Judicial Region
BRANCH 27
Bayombong, Nueva Vizcaya

PEOPLE OF THE PHILIPPINES,

Plaintiff, CRIM. CASE NO. 7447-48

-versus-

ALEX FELIPE A. ABAD,

Accused.
x-----------------------------------------x

JOINT DEMURRER TO EVIDENCE

Accused, thru counsel, respectfully submits his joint demurrer
to evidence and alleges THAT:

Antecedents

1. On September 16, 2013, the accused pleaded NOT

GUILTY when arraigned in the separate informations dated August
30, 2013, for Violation of Sections 5 and 11 of RA 9165, the accusatory
portions read as follows:

Crim. Case No. 7447

“That on or about August 29, 2013 at around 4:30 in

the afternoon in Barangay Sta. Lucia, Municipality of
Bagabag, Province of Nueva Vizcaya, 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 sell, trade,
deliver and give away METHAMPHETAMINE
HYDROCLORIDE, a dangerous drug, as contained in one
(1) heat-sealed transparent plastic sachet with an
approximate weight of 0.032 gram to a field asset, who
acted as poseur buyer during a buy-bust operation, to the
damage and prejudice of the Republic of the Philippines.

CONTRARY TO LAW.”

1
 Crim. Case No. 7448

“That on or about August 29, 2013 at around 4:30 in

the afternoon in Barangay Sta. Lucia, Municipality of
Bagabag, Province of Nueva Vizcaya, 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 direct possession, custody and control one (1) heat-
sealed transparent plastic sachet containing
methamphetamine hydrochloride, a dangerous drug,
with an approximate weight of 0.015 gram to the damage
and prejudice of the Republic of the Philippines.

CONTRARY TO LAW.”

2. On May 2, 2014, the pre-trial was terminated; the State

and the accused stipulated on the following facts:

“1. The identity of the accused who is a resident of

Sta. Lucia, Bagabag, Nueva Vizcaya;
2. The accused was in Sta. Lucia, Bagabag, Nueva
Vizcaya on August 29, 2013 and while there, he was
apprehended by police authorities;
3. That the name and signature of Barangay
Kagawad Leonardo Lucena appears in a document
captioned “Inventory of Confiscated and Seized Items
from Direct Possession and Control of the Subject;”

3. On March 25, 2015, the State rested its case and formally
offered its evidence, all of which were admitted by this Honorable
Court. The State evidence is supported by the testimonies of five (5)
police officers, namely: Andy Angelo Cupido, James Bad-e, Diosdado
Pascual, Jonas Aron and George Gallo, Jr. Police officers Aron and
Gallo being the arresting, seizing and inventory officers who are part
of the alleged buy-bust team;

4. On March 27, 2015, the accused filed his Motion for Leave
of Court to File Demurrer to Evidence after carefully evaluating that
the evidence adduced by the State to prove his guilt in the instant
cases cannot overcome the constitutional presumption that he is
innocent of the crimes charged. Specifically, the fact of sale of the
subject shabu was not sufficiently established;
2
 5. On April 27, 2015, this Honorable Court granted the
accused’ motion for leave of court to file demurrer to evidence, a
copy of which was received by the undersigned counsel on April 29,
2015. Hence, this demurrer;

The Evidence for the State

On the Matter of Sale:

6. At the outset, it can be gleaned from the information itself

in Crim. Case No. 7447 that the alleged sell, trade and delivery of the
subject shabu was between the accused and a field asset who acted as
a poseur buyer. This field asset is not a police officer, his identity was
never divulged and he was never presented to testify on the instant
charges. The State, thru PO2 Jonas Aron, explained this matter thus:

“PROS. TURINGAN:
xxx
Q. Who was the poseur buyer?
A. I cannot divulge the identity of the poseur buyer
for security reasons, sir, because he is afraid.

COURT:
If it were the informant, you may have a good
answer but if it were the poseur buyer, there was nothing
to hide.

PROS. TURINGAN:
Q. Who was the poseur buyer, is he not a police
officer?
A. The informant, sir.

COURT:
Q. Are you telling the court that the informant was
the poseur buyer?
A. Yes, sir.”1

7. The observation of the Honorable Court is correct. If it

were the informant whose identity is being asked, there is no need to
divulge it. But in the instant cases, the informant is himself the
poseur buyer—his non-presentation is fatal to the case of the State as
it will have a hard time proving that a sale, trade or delivery of the
subject shabu indeed took place. The identity of the alleged buyer

1
PO2 Jonas Aron, TSN, October 15, 2014, Page 4.
3
was not established by the State in the instant cases. In People vs.
Sevillano Delos Reyes,2 the Supreme Court held that:

“In the prosecution for illegal sale of a prohibited drug

under Section 5 of R.A. No. 9165, the prosecution must
prove the following elements: (1) the identity of the
buyer and the seller, the object, and the consideration;
and (2) the delivery of the thing sold and the payment
therefor. All these require evidence that the sale
transaction transpired, coupled with the presentation in
court of the corpus delicti, i.e., the body or substance of the
crime that establishes that a crime has actually been
committed, as shown by presenting the object of the
illegal transaction.” (emphasis supplied)

8. While the non-presentation of the poseur buyer does not

by itself negate the fact of sale, his non-presentation must be
sufficiently explained. In the instant cases, the non-presentation of
the alleged field asset who is himself the informant and the poseur
buyer at the same time was not sufficiently explained and was not
justified. No less than this Honorable Court had made this
observation. The freedom of the accused and his very life cannot be
made to depend on mere hearsay and conjecture. In People vs. Pablito
Andaya,3 the Supreme Court stated that:

“The non-presentation of the confidential informant

as a witness does not ordinarily weaken the State’s case
against the accused. However, if the arresting lawmen
arrested the accused based on the pre-arranged signal
from the confidential informant who acted as poseur
buyer, his non-presentation must be credibly explained
and the transaction established by other ways in order to
satisfy the quantum of proof beyond reasonable doubt
because the arresting lawmen did not themselves
participate in the buy-bust transaction with the accused.”

9. Let us examine the testimonies of the police officers who

testified on the alleged sale, trade and delivery of the subject shabu.
PO2 Jonas Aron testified on the matter this way:

“PROS. TURINGAN:

2
G.R. No. 181039, January 31, 2011.
3
G.R. No. 183700, October 13, 2014.
4
 Q. You said we, who was with you when you
proceeded to that place of the transaction?
A. PO2 Gallo, PO3 Masin and SPO4 Lodriguito.
Q. Where was the informant at that time?
A. He was with us, sir.
Q. What happened when you arrived at the place
of the transaction?
A. We hide ourselves, sir.
Q. Including the poseur buyer?
A. No, sir.
Q. What did the poseur buyer do?
A. He went to the dealing place and the suspect
emerged, sir.
Q. From where you are hiding, could you see the
dealing place?
A. Yes, sir.
Q. What happened when the poseur buyer went to
the dealing place?
A. The suspect and the poseur buyer met and the
poseur buyer handed him the buy bust money, sir.

COURT:
Q. A moment, Mr. Witness. How many meters if
more than one meter was the distance between where
you hid yourself to that where the poseur buyer and the
suspect met for the transaction?
A. More or less fifteen meters, sir.

Continue.

PROS. TURINGAN:
Q. So, when the poseur buyer gave the money to
the suspect, what did the suspect do in return?
A. In return, he gave also the item, sir.
Q. What was that item?
A. One heat-sealed plastic sachet, sir.
Q. What was the content of the plastic sachet?
A. It contains white crystalline substance, sir.
Q. What happened after the suspect gave the
plastic sachet containing white crystalline substance to
the poseur buyer?
A. When the item was given to the poseur buyer,
our poseur buyer raised his hand as our pre-arranged

5
 signal, sir, prompting us to emerge and effect the arrest to
the suspect.”4
10. From a distance of fifteen (15) meters, it is inconceivable
that the arresting officers could have heard any exchange of word
between the poseur buyer and the accused. The conclusion of sale
will have to depend on the actions of the parties. On this note, the
testimony of PO2 Jonas Aron is incredible and is an unfounded
conclusion based on speculation. At a distance of fifteen (15) meters,
there is no way that an observer can positively conclude that what
was first handed by the poseur buyer is the buy bust money. It is
even more incredible that the alleged item given by the accused in
return is a heat-sealed plastic sachet. And all the more it is incredible
that PO2 Jonas Aron could have seen that the content of the sachet is
white crystalline substance. The size of the sachet and the volume of its
contents are miniature and at a distance of fifteen (15) meters, it is
incredible that PO2 Jonas Aron have seen it to be a heat-sealed plastic
sachet and that it contained white crystalline substance. In the case of
People vs. Garyzaldy Guzon,5 the Supreme Court observed that:

“x x x, the Court finds merit in Guzon’s argument

that the non-presentation of the poseur-buyer to the
witness stand was fatal to the prosecution’s cause. We
emphasize that in a prosecution for illegal sale of
dangerous drugs, the prosecution must convincingly
prove that the transaction or sale actually transpired. In
the instant case, the poseur-buyer in the buy-bust
operation, a civilian, was the witness competent to prove
such fact, given the testimony of PO2 Tuzon that at the
time the supposed sale happened, he and PO3 Manuel
were positioned about 20 meters away from Guzon and
the poseur-buyer. Although PO2 Tuzon testified during
trial on the supposed sale, such information he could
offer was based only on conjecture, as may be derived
from the supposed actions of Guzon and the poseur-
buyer, or at most, hearsay, being information that was
merely relayed to him by the alleged poseur-buyer.
Given the 20-meter distance, it was unlikely for PO2
Tuzon to have heard the conversations between the
alleged buyer and seller. True enough, his testimony
provided that he and PO3 Manuel merely relied on an
agreed signal, i.e., the poseur-buyer’s removal of his cap,
to indicate that the sale had been consummated.”

4
PO2 Jonas Aron, TSN, October 15, 2014, Page 5-6.
5
G.R. No. 199901, October 9, 2013.
6
 11. PO3 George Gallo, Jr. testified on the matter of the alleged
sale this way:
“PROS. TURINGAN:
Q. What happened when you were in the area?
A. We called the asset and we repeated the pre-
arranged signal, sir.
Q. What pre-arranged signal was that?
A. By raising the left hand, sir.
Q. Who told the asset about that?
A. PO3 Masin, sir.
Q. After that, what happened next?
A. When the suspect was approaching, they talked
and he raised his left hand and I immediately went near
the suspect and introduced myself as a policeman, sir.

COURT:
Q. After introducing yourself as police officer what,
if ever you did something, did you do?
A. PO2 Aron followed and handcuffed the suspect,
sir.”6

xxx

On cross-examination, PO3 George Gallo, Jr. further testified

that:

“ATTY. BALITANG:
xxx
Q. How far were you from your companion Aron
when that conversation was taking place between the
asset and the suspect?
A. We were almost beside each other, sir.
Q. And after this conversation, as you said, the
asset raised his hand?
A. Yes, sir.
Q. And that’s the time you went to effect the arrest?
A. Yes, sir.
Q. You were the first one to arrive at the place
where the asset and the suspect were conversing?
A. Yes, sir.”7

12. There we have it. Two police officers standing side by

side and allegedly observing the same transaction have different
versions of what transpired. PO2 Jonas Aron saw that an exchange of
6
PO3 George Gallo, Jr., TSN, February 23, 2015. Pages 9-10.
7
Id, Page 19.
7
the buy-bust money and the item took place but did not hear any
conversation. PO3 George Gallo, Jr. heard a conversation but did not
elaborate on what the conversation was all about, then there was the
pre-arranged signal of raising of the hand by the poseur buyer, and
he immediately proceeded to effect the arrest of the accused. In
People vs. Dionisio Tadepa,8 the Supreme Court explained that the
failure of the prosecution to present in court the alleged poseur-buyer
is fatal to its case. Said the Court in that case, the police officer, who
admitted that he was seven (7) to eight (8) meters away from where
the actual transaction took place, could not be deemed an eyewitness
to the crime. Citing several landmark cases, the Supreme Court
further held in People vs. Garyzaldy Guzon9 that was earlier cited that:

“Well established is the rule that when the

inculpatory facts and circumstances are capable of two (2)
or more explanations, one of which is consistent with the
innocence of the accused and the other consistent with his
guilt, then the evidence does not fulfill the test of moral
certainty and is not sufficient to support a conviction.”

13. At best, the pre-arranged signal from the unknown

poseur buyer is what prompted police officers Jonas Aron and
George Gallo, Jr. to emerge from hiding and effect the arrest of the
accused. On this note, the Supreme Court further held in the case of
People vs. Pablito Andaya10 that was earlier cited that:

“Given the legal characterizations of the acts

constituting the offense charged, the members of the buy-
bust team could not incriminate Andaya by simply
declaring that they had seen from their positions the
poseur buyer handing something to Andaya who, in turn,
gave something to the poseur buyer. If the transaction
was a sale, it was unwarranted to infer from such
testimonies of the members of the buy-bust team that
what the poseur buyer handed over were the marked
P100.00 bills and that what Andaya gave to the poseur
buyer was the shabu purchased.

X x x. Secondly, the reliance on the supposed signal

to establish the consummation of the transaction between
the poseur buyer and Andaya was unwarranted because
the unmitigatedly hearsay character of the signal

8
G.R. No. 100354, May 26, 1995.
9
G.R. No. 199901, October 9, 2013.
10
G.R. No. 183700, October 13, 2014.
8
 rendered it entirely bereft of trustworthiness. The
arresting members of the buy-bust team interpreted the
signal from the anonymous poseur buyer as the sign of
the consummation of the transaction. Their
interpretation, being necessarily subjective without the
testimony of the poseur buyer, unfairly threatened the
liberty of Andaya. We should not allow that threat to
perpetuate itself. And, lastly, the reliance on the signal
would deprive Andaya the right to confront and test the
credibility of the poseur buyer who supposedly gave it.”

14. All told, as the alleged sale, transfer and trade was not
sufficiently established, it is thus axiomatic that the arrest is illegal
and unconstitutional. And if the arrest is illegal, the alleged
possession of the subject shabu as charged under Crim. Case No. 7448
on account of the search made on the person of the accused as an
incident to the arrest has no leg to stand on. The alleged search on
the body of the accused resulting to the recovery of another sachet of
shabu is illegal as arrest itself is illegal—this is the proverbial fruit of
the poisonous tree. The right of the people to be secure in their
persons, houses, papers, and effects against unreasonable searches
and seizures of whatever nature and for any purpose shall be
inviolable;11

Breach of Chain of Custody:

15. Assuming for the sake of argument that the buy-bust is

legal under the presumption of regularity in the performance of their
duties by the arresting police officers, there was non-compliance with
the requirements of Sec. 21 of R.A. 9165 and that the chain of custody
was breached. Sec. 21 (a) of R.A. 9165 mandates that the
apprehending team having initial custody and control of the drugs
shall, immediately after seizure and confiscation, physically
inventory and photograph the same in the presence of the accused
or the person/s from whom such items were confiscated and/or
seized, or his/her representative or counsel, a representative from the
media and the Department of Justice (DOJ), and any elected public
official who shall be required to sign the copies of the inventory and
be given a copy thereof. In the instant cases, there was no complete
physical inventory of the seized items and no photograph of the
items was made. Exhibit “C” of the State consisting of a handwritten
document denominated as Inventory of Confiscated and Seized Items x x

11
Article III, Sec. 2 of the Constitution.
9
x indicate only “a. One (1) heat sealed plastic sachet containing
white crystalline substance believed to be metamphethamine (sic)
hydrochloride marked as: GJ-2.” There is no indication that another
plastic sachet was inventoried at the place of apprehension or
anywhere else near it. And while the said handwritten inventory
was signed by one kagawad Leonardo Lucena, there is no showing
that he received a copy thereof as required under the rules. The
signature also of PO2 Jonas Aron from whom the supposed items
were taken from by PO3 George Gallo, Jr. does not appear in the
inventory. PO2 Jonas Aron testified on that matter that:

“PROS. TURINGAN:
xxx
Q. After the recovery of those items, what
happened next?
A. After the recovery of the items, sir, I turned over
to the inventory officer, sir.
Q. Who was the inventory officer?
A. PO2 Gallo, sir.”12

16. No further physical inventory and photograph of the

items seized were done at the Bagabag Municipal Police Station
where the buy-bust team proceeded after the arrest. Instead, PO2
Jonas Aron further testified that:

“COURT:
xxx
Q. While at the police station, what happened
there?
A. The seized items were given to the investigator,
sir.

PROS. TURINGAN:
Q. Who gave the items?
A. PO2 Gallo, sir.

COURT:
Q. Who gave to the investigator?
A. PO2 Gallo, sir.
Q. What did PO2 Gallo give to the investigator?

12
PO2 Jonas Aron, TSN, October 15, 2014, Page 11.
10
 A. I just saw the items placed on the table, sir, but I
did not mind it anymore because I have no participation
anymore.
Q. Who was the investigator, if you could
remember?
A. PO2 Jason Naval, sir.”13

17. It is clear that no complete inventory was held at the

place of arrest, only one (1) heat-sealed plastic sachet was accounted
for and that no photograph was taken of such inventory as required
by the rules. There are no representatives from the media and from
the DOJ and no copy of the inventory was given to the supposed
witness in the person of barangay kagawad Leonardo Lucena. There
was also no inventory made at the police station even if the supposed
items seized were “placed on the table.” There was a serious non-
compliance with the requirements laid down under Sec. 21 of R.A.
9165. Worse, the items were turned over to the duty investigator in
the person of PO2 Jason Naval who did not testify as to the integrity
and continuity of the chain of evidence. The State did not offer any
justification for these procedural lapses, which, taken in their
entirety, constitutes a serious breach of the chain of custody as
defined under Sec. 1(b) of the Dangerous Drugs Board Resolution
No. 1, Series of 2002. It was already held in a long line of cases that it
is fatal for the prosecution to fail to prove that the specimen
submitted for laboratory examination was the same one allegedly
seized. First, there is only one (1) plastic sachet accounted for in the
inventory. Second, the seized items were turned over to PO2 Jason
Naval who did not testify on how he disposed of the items. Third,
PSI James Bad-e who conducted the forensic examination of the items
allegedly received the items for examination from PO2 Cupido, who,
in turn, testified that he received the items from PO2 George Gallo,
Jr.; but the records of PNP Crime Lab indicates that the items were
submitted by one PO2 Boyet Santiago, (TSN, November 17, 2014,
Pages 12-13);

18. The criminal accusation against a person must be

substantiated by proof beyond reasonable doubt. The Court should
steadfastly safeguard his right to be presumed innocent. Although
his innocence could be doubted, for his reputation in his community
might not be lily-white or lustrous, he should not fear conviction of
any crime, least of all as grave as drug pushing, unless evidence
against him was clear, competent and beyond reasonable doubt.

13
Idem, Page 13.
11
Otherwise, the presumption of innocence in his favor would be
rendered empty;14

19. In the cases at bar, the State has not proven the guilt of
the accused beyond reasonable doubt. The presumption of innocence
of the accused tilts in his favor. It is thus prayed that he be acquitted
of the crimes charged and his freedom be restored without delay;

Prayer

WHEREFORE, foregoing premises considered, it is respectfully

prayed of the Honorable Court to grant this demurrer to evidence
and ACQUIT the accused from the instant charges for failure of the
esteemed prosecution to meet the quantum of evidence needed to
prove his guilt beyond reasonable doubt;

Such other relief as may be just and equitable under the

premises is respectfully prayed for;

RESPECTFULLY SUBMITTED.

Bayombong, Nueva Vizcaya; May 5, 2015.

GARCIA & PARTNERS LAW OFFICES

2/F Bobolla Bldg., National Road, Purok 1
District IV, Bayombong, Nueva Vizcaya
[Counsel for the Accused]

By:

EUGENE M. BALITANG
Roll No. 43807, 06 May 1999
MCLE No. V-0002722, 03 July 2014
PTR No. 2527918, 05 January 2015, Ifugao
IBP O.R. No. 955573, 05 January 2015, Ifugao
CP No. 09063595498; email: [email protected]

14
People vs. Pablito Andaya, G.R. No. 183700, October 13, 2014.
12
COPY-FURNISHED [by personal service]:

PROS. EMERSON TURINGAN

Provincial Prosecutor
Justice Hall, Bayombong, Nueva Vizcaya

13