Respectfully Submitting

this draft for your

consideration.
Thank You.

Ariz Delson Cawilan

OSG Legal Intern REPUBLIC OF THE PHILIPPINES
COURT OF APPEALS
CAGAYAN DE ORO CITY

____DIVISION

PEOPLE OF THE PHILIPPINES,

Plaintiff-Appellee,

- versus - CA-G.R. CR No. HC-00722 MIN

JOSEPH MAGDADARO y MONTECALBO,

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

MANIFESTATION WITH RECOMMENDATION

FOR ACQUITTAL
(In Lieu of Appellee's Brief)

The Solicitor General, as the Tribune of the People and an

officer of the Court called upon to share in the task and

responsibility of dispensing justice and resolving disputes1,

respectfully recommends the acquittal of accused-appellant Joseph

Magdadaro y Montecalbo on reasonable doubt.

STATEMENT OF THE CASE

This is an appeal by Joseph Magdadaro from the Decision

dated July 2, 2009 of the Regional Trial Court, Branch 25, Cagayan

De Oro City finding appellant guilty for violation of Sec. 5, Par. 1, Art.

II of Republic Act 9165 otherwise known as the Comprehensive

1
Gonzales vs. Chavez, 205 SCRA 816, 837-838 (1992).
MANIFESTATION with RECOMMENDATION
2
FOR ACQUITTAL
CA-G.R. CR No. HC-00722 MIN
Pp. v. JOSEPH MAGDADARO y MONTECALBO
x --------------------------------------------------x
Dangerous Drugs Act of 2002. The Information reads:

The undersigned Assistant City Prosecutor

hereby accuses Joseph Magdadaro y
Montecalbo for violation of Section 5
Paragraph 1, Article II of Republic Act 9165,
committed as follows:

That on or about February 25, 2006 at

8:50 p.m. at Piaping Itum, Macabalan,
Cagayan de Oro City, Philippines, and
within the jurisdiction of this Honorable
Court, the above-named accused,
without being authorized by law to sell,
trade, administer, dispense, deliver,
give away to another, distribute,
dispatch in transit or transport any
dangerous drugs did then and there
willfully, unlawfully, criminally and
knowingly sell and/or offer for sale, and
give away to a poseur-buyer two (2)
heat sealed transparent plastic sachets
containing methamphetamine
hydrochloride locally known as shabu, a
dangerous drug, weighing a total of
0.22 gram accused knowing the same
to be a dangerous drug, in
consideration of Two Hundred Pesos
(P200.00) consisting of four (4) genuine
P50.00 bills with Serial Nos. LT827079,
LT327078 and LT827076 which were
previously dusted with fluorescent
powder for the purpose of the buybust
operation.

Contrary to Section 5 Paragraph 1, Article II

of Republic Act 9165. 2

Upon arraignment the accused-appellant pleaded “not guilty”

to the crime charged.2 Trial then ensued.

The prosecution presented Forensic Chemist April Carbajal-

2
Records, page 1.
2
Decision, page 2
MANIFESTATION with RECOMMENDATION
3
FOR ACQUITTAL
CA-G.R. CR No. HC-00722 MIN
Pp. v. JOSEPH MAGDADARO y MONTECALBO
x --------------------------------------------------x
Madroňo, SPO2 Rico Justalero (Justalero) and PO1 April Mae

Canonigo (Canonigo).

On the other hand, the defense presented accused-appellant

Joseph Magdadaro y Montecalbo as its lone witness.3

In a Decision dated July 2, 2009, the trial court found accused-

appellant guilty as charged.

The dispositive portion of the decision reads:

WHEREFORE, in view of the foregoing,

this court finds Joseph Magdadaro y
Montecalvo GUILTY beyond reasonable doubt
for Violation of Section 5, Article II of
Republic Act 9165. He is sentenced to suffer
the penalty of LIFE IMPRISONMENT with full
credit for the period of his preventive
imprisonment pursuant to Article 29, REVISED
PENAL CODE, and to pay a fine of FIVE
hundred Thousand Pesos (P500,000.00)

The Sachets of Shabu are confiscated in

favor of the State to be destroyed in
accordance with law.

SO ORDERED. 4

STATEMENT OF FACTS

The prosecution alleged that on February 25, 2006, a team

from the City Drug Enforcement Unit (CDEU) of the Cagayan de Oro

City Police Office together with their confidential informant

proceeded to Paiping Itum, Mabalacan Cagayan De Oro City to

conduct a buy-bust operation against herein appellant Joseph

Magdadaro who was previously reported as a drug pusher to the

CDEU by the police informant.

3
Ibid.
4
Decision, page 4
MANIFESTATION with RECOMMENDATION
4
FOR ACQUITTAL
CA-G.R. CR No. HC-00722 MIN
Pp. v. JOSEPH MAGDADARO y MONTECALBO
x --------------------------------------------------x
Upon arriving at the target area, each of the policemen placed

himself in the strategic location and watched Canonigo, the

designated poseur-buyer and the police informant transact with the

accused. Canonigo gave Two Hundred Pesos (P 200.00) to the

appellant and the latter in turn gave two sachets containing white

crystalline substances to the former. After observing that the illegal

transaction was consummated, all of the other members of the buy-

bust team arrested the accused.

Thereafter, the appellant was brought to the PNP Crime

Laboratory for a urine and Ultraviolet Fluorescent Powder

Examination. The sachets of shabu which was the product of the

buy-bust operation was also brought to the same laboratory for

examination.

The results of the examination showed that the urine sample

of the accused was positive for shabu and both his hands were

positive for the presence of Ultraviolet Fluorescent Powder and the

suspected sachet of shabu from the appellant was found positive for

shabu.

On the other hand, accused-appellant contended that he was

on his way to the house of his live-in partner when he was suddenly

held by police officers Serina and Sagun and forced to ride a parked

taxi. Canonigo was already inside the taxi when the accused

boarded the same. The taxi then started to run and while it was in

motion, accused was bodily searched by Serina and the latter took

his two pieces of One Hundred Peso bills placed inside the pocket of
MANIFESTATION with RECOMMENDATION
5
FOR ACQUITTAL
CA-G.R. CR No. HC-00722 MIN
Pp. v. JOSEPH MAGDADARO y MONTECALBO
x --------------------------------------------------x
his pants.

He was thereafter brought to the Maharlika Police Station

where he was again subjected to bodily search but nothing was

recovered from him. He was further subjected to investigation

without the benefit of a counsel by the police officers. There he was

presented for the first time the sachets of shabu and the marked

money which was allegedly recovered from the buy-bust operation

against him.6

During trial the accused-appellant denied the accusation

against him. He also questioned the identity and integrity of the

sachets of shabu allegedly recovered from him, but despite such,

the court a quo convicted him.

ARGUMENTS

I.

THE PROSECUTION'S WITNESSES FAILED

TO ESTABLISH THE CHAIN OF CUSTODY
OVER THE SEIZED SACHETS OF SHABU.

II.

THE PRESUMPTION OF REGULARITY IN

THE PERFORMANCE OF PUBLIC DUTY
CANNOT PREVAIL OVER THE
CONSTITUTIONAL PRESUMPTION OF
INNOCENCE AFFORDED TO ACCUSED-
APPELLANT.

DISCUSSION

THE PROSECUTION'S
WITNESSES FAILED TO
ESTABLISH THE CHAIN OF
6
Decision Page 2
MANIFESTATION with RECOMMENDATION
6
FOR ACQUITTAL
CA-G.R. CR No. HC-00722 MIN
Pp. v. JOSEPH MAGDADARO y MONTECALBO
x --------------------------------------------------x
CUSTODY OVER THE
SEIZED SACHETS OF
SHABU

Police officers Rico Justalero (Justalero) and April Mae

Canonigo (Canonigo) testified that the alleged sachets of shabu

were given to Police officer Leodegario Sagun Jr. (Sagun) who was

their office custodian after the arrest of the accused-appellant. They

further testified that Sagun marked the said sachets in the scene of

the crime and delivered said sachets to the PNP Crime Laboratory

for examination.

This however was not proven with certainty when it was

revealed during the cross examination of Justalero that he did not

personally witness Sagun making his mark on the sachets as he

does not know when the markings were made4, this also holds true

with Canonigo5. And both Justalero6 and Canonigo7 cannot identify

with precision the markings made by Sagun. This creates an

irregularity in the chain of custody over the alleged sachets of

shabu, because there now arises a question and creates a doubt in

the mind as to whether or not the sachets of shabu presented in

court is the same as the sachets allegedly recovered from the

accused-appellant when the markings made thereon were not

identified by the only two prosecution witnesses.

More recently, in Zarraga vs. People of the Philippines, the

Court held that the material inconsistencies with regard to when

4
TSN (SPO2 R. Justalero) dated June 27, 2007, pp 35
5
TSN (PO1 A.M. Canonigo) dated February 8, 2008, pp 26
6
TSN (SPO2 R. Justalero) dated June 27, 2007, pp 36
7
TSN (PO1 A.M. Canonigo) dated February 8, 2008, pp 25
MANIFESTATION with RECOMMENDATION
7
FOR ACQUITTAL
CA-G.R. CR No. HC-00722 MIN
Pp. v. JOSEPH MAGDADARO y MONTECALBO
x --------------------------------------------------x
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 shabu8.

In People of the Philippines vs Cervantes, there can be no

crime of illegal sale of dangerous drugs when nagging doubts

persist on whether the specimen submitted for examination and

presented in court was what was recovered from or sold by, the

accused- on top of the key elements of possession or sale, the fact

that the substance illegally possessed and sold in the first place is

the same substance offered in court as exhibit must likewise be

established with the same degree of certitude as that needed to

sustain a guilty verdict10

The authenticity of the seized substance may only be

established if there was observation of the chain of custody rule.

The chain of custody rule requires 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 illegal drug10. It is however clear

from the facts that the there was no strict observation of the chain

of custody rule. Moreover, since Police officers Justalero11 and

Canonigo12 have no personal knowledge on how the evidence was

handled after it was seized from the accused appellant, then Police
8
People vs Zarraga, G.R. No. 162064, March 14, 2006
1 0
People v. Cervantes, G.R. No. 181494, March 17, 2009.
1 0
Catuiran vs People G.R. No. 175647. May 8, 2009
1 1
TSN (SPO2 R. Justalero) dated June 27, 2007, pp 31-32
1 2
TSN (PO1 A.M. Canonigo) dated February 8, 2008, pp 37-38
MANIFESTATION with RECOMMENDATION
8
FOR ACQUITTAL
CA-G.R. CR No. HC-00722 MIN
Pp. v. JOSEPH MAGDADARO y MONTECALBO
x --------------------------------------------------x
officer Sagun who is the office custodian of the seized evidence and

who is more in a position to attest to the genuineness of the

markings he made should have been presented in court to testify on

this matter on how he have handled the evidence while it was under

his custody.

Proper authentication may only be done if the prosecution has

offered the testimony of all key witnesses who have handled the

drug from the time it was seized up to the time the drug is

presented as evidence in court to establish a sufficiently complete

chain of custody thereby eliminating any doubt in court as to the

authenticity or integrity of the seized drug that it is indeed the

substance which was recovered from the accused13. This was

reiterated in the case of Valdez vs. People of the Philippines, the

onus of proving culpability in criminal indictment falls upon the

State. In conjunction with this, law enforcers and public officers alike

have the corollary duty to preserve the chain of custody over the

seized drugs. The chain of evidence is constructed by proper exhibit

handling, storage, labeling and recording, and must exist from the

time the evidence is found until the time it is offered in evidence.

Each person who takes possession of the specimen is duty-bound to

detail how it was cared for, safeguarded and preserved while in his

or her control to prevent alteration or replacement while in custody.

This guarantee of the integrity of the evidence to be used against

1 3
People v. Obmiranis, G.R. No. 181492, December 16, 2008.
MANIFESTATION with RECOMMENDATION
9
FOR ACQUITTAL
CA-G.R. CR No. HC-00722 MIN
Pp. v. JOSEPH MAGDADARO y MONTECALBO
x --------------------------------------------------x
an accused goes to the very heart of his fundamental rights 14. The

lapses of the prosecution creates a doubt in the mind of a

reasonable man and there is no certainty that there was no

substitution, alteration or contamination made during the entire

process form the seizure of the evidence to its presentation in court.

In the case of People of the Philippines vs Cervantes 15, the

court said that unless the state can show by records or testimony

that the integrity of the evidence has not been compromised by

accounting for the continuous whereabouts of the object evidence

at least between the time it came into the possession of the police

officers until it was tested in the laboratory, then the prosecution

cannot maintain that it was able to prove the guilt of the accused

beyond reasonable doubt. Although the prosecutions have the sole

discretion on whether or not to present a witness, the prosecution's

failure to present police officer Sagun produces a wide gap that

creates a suspicion that substitution or alteration transpired along

the process and that no explanation was ever presented by the

prosecution on this matter. Further, the Honorable Supreme Court

said in the case of Carino vs. People, that this method of

authenticating evidence 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 is from the

testimony of every witness who handled the evidence from which a

reliable assurance can be derived that the evidence presented in

14
Valdez vs People, G.R. No. 170180. November 23, 2007
1 5
supra
MANIFESTATION with RECOMMENDATION
10
FOR ACQUITTAL
CA-G.R. CR No. HC-00722 MIN
Pp. v. JOSEPH MAGDADARO y MONTECALBO
x --------------------------------------------------x
court is the same as that seized from the accused16. This was

reiterated again in In People v. Cervantes,

The Supreme Court held that:

Although the non-presentation of some of

the witnesses who can attest to an
unbroken chain of evidence may in some
instances be excused, there should be a
justifying factor for the prosecution to
dispense with their testimonies. Here…as in
this case…, however, no explanation was
proffered as to why key individuals who had
custody over the drugs at certain periods
were not identified and/or not presented as
witnesses. Uncertainty, therefore, arises if
the drugs and paraphernalia seized during
the buy-bust operation on January 2003
were the same specimens presented in
court in December of that same year.
xxxxx

The very identity of the illegal drug is in

question because of the absence of key
prosecution witnesses. No one knows if the
drug seized at the time of the buy-bust
operation is the same drug tested and later
kept as evidence against Barba. Though
there was a stipulation during trial that the
specimens submitted as evidence yielded
positive for shabu, this only touches on one
link in the chain of custody. Thus, given the
failure of the prosecution to identify the
continuous whereabouts of such fungible
pieces of evidence, we are unable to
conclude that all elements of the crime
have been established beyond reasonable
doubt.17

The same question as to the identity of the seized material is

posed in this case due to the non presentation of police officer

Sagun to shed light and establish with certainty the chain of

custody.“Thus the failure of the prosecution to establish the chain of

1 6
Carino v. People, G.R. No. 178757, 13 March 2009
1 7
supra
MANIFESTATION with RECOMMENDATION
11
FOR ACQUITTAL
CA-G.R. CR No. HC-00722 MIN
Pp. v. JOSEPH MAGDADARO y MONTECALBO
x --------------------------------------------------x
custody is fatal to its cause” 18
and due to said failure, the

prosecution was not able to prove beyond reasonable doubt the

guilt of the accused.

THE PRESUMPTION OF
REGULARITY IN THE
PERFORMANCE OF PUBLIC
DUTY CANNOT PREVAIL OVER
THE CONSTITUTIONAL
PRESUMPTION OF
INNOCENCE AFFORDED TO
ACCUSED-APPELLANT.

The court a quo in upholding the presumption of regularity in

the performance of public duty of the police officers held that:

Well settled is the rule that in cases

involving violations of Dangerous Drugs,
credence is given to prosecution witnesses
who are police officers for they are
presumed to have performed their duties in
a regular manner, unless there is evidence
to the contrary suggesting ill motive on the
part of the police officers or deviation from
the regular performance of their duties.
None was presented in the instant case.
Accused solely on his bare allegations
unsubstantiated by competent and credible
evidence of which no other defense witness
even corroborated statements.19

The court a quo erred.

Both police officers Justalero and Canonigo said that the only

procedure they have taken during the buy-bust operation is to

consummate the illegal transaction with the accused-appellant,

arrest him and subject him for investigation and laboratory testing.

The procedures laid down under Section 21 of R.A. no. 916520 was
18
People v. Partoza, G.R. No. 182418, May 8, 2009.
1 9
Decision page 3
2 0
Section 21 (1) of R.A. no. 9165 materially requires the apprehending team having initial
custody and control of the drugs to, immediately after seizure and confiscation, physically inventory and
MANIFESTATION with RECOMMENDATION
12
FOR ACQUITTAL
CA-G.R. CR No. HC-00722 MIN
Pp. v. JOSEPH MAGDADARO y MONTECALBO
x --------------------------------------------------x
not followed and this negates the presumption that official duties

have been regularly performed by the police officers21.

Frame-up, like alibi, is generally viewed with caution by this

Court, because it is easy to contrive and difficult to disprove.

Moreover, it is a common and standard line of defense in

prosecutions of violations of the Dangerous Drugs Act. For this claim

to prosper, the defense must adduce clear and convincing evidence

to overcome the presumption that government officials have

performed their duties in a regular and proper manner22. In the case

at hand, the defense have exposed clearly on record that the police

operatives in the said buy bust operation have not properly

performed their duty due to their non observance of the procedures

laid down under RA 9165. Thus, the presumption of regularity in the

performance of duties of the police officers must not be upheld.

Further, because the testimonies of the lawmen are replete

with inconsistencies. Here, the presumption of regularity in the

performance of official duty is negated by their deeds as well as by

their words given on the witness stand23.

In People of the Philippines v. Malillin, The presumption of

regularity is merely just that — a mere presumption disputable by

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, and any elected public official who shall be required to sign the copies of the
inventory and be given a copy thereof.
2 1
People of the Philippines vs Agulay, G.R. No. 181747. September 26, 2008
22
People v. Zheng Bai Hui, 393 Phil. 68, 135
23
People vs Batoctoy, G.R. Nos. 137458-59. April 24, 2003
MANIFESTATION with RECOMMENDATION
13
FOR ACQUITTAL
CA-G.R. CR No. HC-00722 MIN
Pp. v. JOSEPH MAGDADARO y MONTECALBO
x --------------------------------------------------x
contrary proof and which when challenged by the evidence cannot

be regarded as binding truth. Suffice it to say that this presumption

cannot preponderate over the presumption of innocence that

prevails if not overthrown by proof beyond reasonable doubt. In the

present case the lack of conclusive identification of the illegal drugs

allegedly seized from petitioner, coupled with the irregularity in the

manner by which the same were placed under police custody before

offered in court, strongly militates a finding of guilt.

In our constitutional system, basic and elementary is the

presupposition that the burden of proving the guilt of an accused

lies on the prosecution which must rely on the strength of its own

evidence and not on the weakness of the defense. The rule is

invariable whatever may be the reputation of the accused, for the

law presumes his innocence unless and until the contrary is shown.

In dubio pro reo. When moral certainty as to culpability hangs in the

balance, acquittal on reasonable doubt inevitably becomes a matter

of right24.

Courts should not allow that the intention behind the

procedures laid down under R.A. 9165 be treated lightly by law

enforcers as it would render the law nugatory at the expense of the

protected rights of every person.

CONCLUSION

In all persecutions for violation of the Comprehensive

Dangerous Drugs Act of 2002, the following elements must be

2 4
People vs Malillin, G.R.No. 162064, March 14, 2006
MANIFESTATION with RECOMMENDATION
14
FOR ACQUITTAL
CA-G.R. CR No. HC-00722 MIN
Pp. v. JOSEPH MAGDADARO y MONTECALBO
x --------------------------------------------------x
proven beyond reasonable doubt: (1) proof that the transaction took

place and (2) presentation in court of the corpus delicti or the illicit

drug as evidence.25 The second element is not present in the case

at bar due to the non observance of the chain of custody rule.

The chain of custody rule must be strictly be followed as

observed by the Supreme Court in Carino vs People of the

Philippines, the exhibit’s level of susceptibility to fungibility,

alteration, or tampering – without regard to whether the same is

advent or otherwise not- dictates the level of strictness in the

application of the chain of custody rule26. In the case of Malillin vs

Pp, the honorable court said that a unique characteristic of narcotic

substances is that they are not readily identifiable as in fact they

are subject to scientific analysis to determine their composition and

nature – hence, in authenticating the same, a standard more

stringent than that applied to cases involving objects which are

readily identifiable must be applied, a more exact standard that

entails a chain of custody of the item with sufficient completeness if

only to render it improbable that the original item has either been

exchanged with another or been contaminated or tampered with9.

Therefore, the shabu which was allegedly been seized from the

accused-appellant cannot be given credence by the court a quo for

having been presented in violation of the chain of custody rule.27

2 5
People of the Philippines vs Magat 567 SCRA 86
2 6
Carino vs People, G.R. No. 178757, 13 March, 2009
9

27
Milallin vs People, G.R. No. 172953. April 30, 2008
MANIFESTATION with RECOMMENDATION
15
FOR ACQUITTAL
CA-G.R. CR No. HC-00722 MIN
Pp. v. JOSEPH MAGDADARO y MONTECALBO
x --------------------------------------------------x
The burden of proof of establishing the guilt of the accused

beyond reasonable doubt is lodged upon the prosecution by proving

the elements of the crime. This may only be done by adducing proof

which is enough for a reasonable man to believe with moral

certainty that the crime has been committed by the accused. The

evidences presented in this case however are insufficient. The

quantum of proof required in criminal cases to overturn the

constitutional presumption of innocence is not met. It is a well

settled rule that conviction does not lie on the weakness of the

defense's evidence but on the strength of the prosecution's

evidence. That being the case, the accused-appellant should

therefore be acquitted.

RECOMMENDATION

PREMISES CONSIDERED, it is respectfully submitted that the

guilt of accused-appellant has not been proven beyond reasonable

doubt. The Solicitor General, guided by the policy that it is better to

set ten guilty men free than to imprison one innocent man28,

therefore, respectfully recommends that the trial court’s Decision

dated July 2, 2009, be reversed and set aside and that accused-

appellant be acquitted on reasonable doubt.

Respectfully submitted.

Makati City, May _____, 2010.

28
People vs. Cunanan, 19 SCRA 769.
MANIFESTATION with RECOMMENDATION
16
FOR ACQUITTAL
CA-G.R. CR No. HC-00722 MIN
Pp. v. JOSEPH MAGDADARO y MONTECALBO
x --------------------------------------------------x
signatories . . . /

ALBERTO C. AGRA
Acting Solicitor General
Roll No. 36912
IBP No. (Lifetime) 06555, Mar. 30, 2007
MCLE Exemption No. II-001133, Apr. 26, 2007

KARL B. MIRANDA
Assistant Solicitor General
Roll No. 33306
IBP No. (Lifetime) 04423, Feb. 9, 2003
MCLE Exemption No. III-000370

DENISE S. DY
Associate Solicitor
Roll No. 57316
IBP No. 788735, 4-21-2009
MCLE Compliance No. (Exempted – new lawyer)
OFFICE OF SOLICITOR GENERAL
134 Amorsolo St., Legaspi Village, Makati City

Draft Prepared by:

ARIZ DELSON CAWILAN

OSG Legal Intern

COPY FURNISHED -

ATTY. JOVIEL P. EDAMA

SORIANO, SY & SIMORA
Counsel for Accused-Appellant
3rd Floor Metrobank Building
Delgado Street, Iloilo City

EXPLANATION
(Pursuant to Section 11, Rule 13 of the
1997 Rules of Civil Procedure)

This Manifestation with Recommendation for Acquittal is being served

and filed by registered mail due to the distance between the opposing counsel
and this Honorable Court.

DENISE S. DY
Associate Solicitor