REPUBLIC OF THE PHILIPPINES

METROPOLITAN TRIAL COURT

NATIONAL CAPITAL JUDICIAL REGION
BRANCH 42
QUEZON CITY

PEOPLE OF THE PHILIPPINES,

Plaintiff,

- versus - CRIM. CASE NO. M-QZN-19-

11036

PERFECTO POLE, VIOLETA

MANUNTAG,
Accused.

x-------------------------------------------x

MOTION FOR LEAVE

TO FILE DEMURRER TO EVIDENCE

The Accused, through counsel, respectfully states:

1. The Accused respectfully seeks leave from this Honorable Court to

file a demurrer to evidence pursuant to Section 23, Rule 119 of
the Rules of Court.

TIMELINESS

2. On 22 October 2020, the Honorable Court, resolved the

Prosecution’s Formal Offer of Exhibits. Accordingly, the
Prosecution was deemed to have rested its case.

3. This Motion, therefore, is timely filed.

GROUND

4. There is insufficiency of evidence to prove the guilt of both the

Accused beyond reasonable doubt based on the following
grounds:

a. The Prosecution was not able to prove, beyond

reasonable doubt, that both of the Accused received an
amount of Six Hundred Twenty Nine Thousand and One
Hundred Ninety Eight pesos and sixty seven centavos (Php.
629,198.67) as charged in the Information.
 People vs. Pole, Mamuntag
Criminal Case No. M-QZN-19-
11036
Motion for Leave to File Demurrer
to Evidence
Page 2
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b. The Prosecution was not able to provide to this

Honorable Court the original copies of Exhibts “D”, “E”, “F”
“G” “J” “J-1” and “J-2”;

b. The Prosecution was not able to present the any of

the three Private Complainants (Rafael Martin, Roberto
Martin and Josie Martin); and

5. In Navarrete vs. People, the Court discussed the importance of the

offense charged in the Information:
Navarrete v. People, 542 Phil. 496, 504 (2007).

6. Since the poseur-buyer was not presented, the Prosecutor cannot

prove the completeness of the alleged transaction.

7. If we are to look at the testimony of the back-up Romelyn Palisoc,

as stated in their Joint-Affidavit, it could clearly show that he only
entered the scene after the pre-arranged signal was made:

“8. That I and the suspect proceeded with the transaction

and after the exchange of the money and the illegal drugs, I
(PO2 Janimar Serrano) was able to seized (sic) one (1) heat
sealed transparent plastic heat sealed (sic) sachet
containing white crystalline granules believed to be
Metamphetamine Hydrochloride commonly known as
“shabu” from the suspect in consideration of two Hundred
Pesos (Php. 200.00) and immediately effected the arrest at
the same time, I (PO2 Serrano) made a pre-arranged
signal for the other intel operatives to approach and
assist me in the apprehension”

8. Juxtapose this with the fact that the other intel-operatives,

including PO1 Romelyn Palisoc were placed in “strategic places”
within the vicinity:

“5. That the subject of buy-bust operation was one Rolly

Tamondong y Cayabyab, a known drug pusher at the said
area, as he is included in at the Municipality Drug Watch
List of personalites wherein I (PO2 Janimar Serrano will
act as poseur buyer while the other team members
 People vs. Pole, Mamuntag
Criminal Case No. M-QZN-19-
11036
Motion for Leave to File Demurrer
to Evidence
Page 3
-------------------------------------------

posted themselves in strategical places within the

vicinity”

9. Meaning, the alleged actual sale was only between the Accused
and PO2 Serrano. Hence, as to whether there was an actual sale is
concerned, we can never really find out. The participation of the
other Police Officers were, admittedly, after the fact of the arrest.

In the absence of
the testimony of
the poseur-buyer,
the chain of
custody cannot be
proven beyond
reasonable doubt.

10. As elucidated by the Court, in a catena of cases1:

"The chain of custody requirement performs this function in

that it ensures that unnecessary doubts concerning the identity
of the evidence are removed."

Chain of custody is defined as "duly recorded authorized

movements and custody of seized drugs or controlled chemicals
or plant sources of dangerous drugs or laboratory equipment of
each stage, from the time of seizure/confiscation to receipt in
the forensic laboratory to safekeeping, to presentation in court
for destruction."In People v. Havana, the Court expounded on
the custodial chain procedure in this wise:

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 in
evidence, in such a way that every person who touched the
1
PP vs Gayoso, G.R. No. 206590, People v. Havana, G.R. No. 198450, January 11,
2016, 778 SCRA 524, 534, People v. Nandi, 639 Phil. 134, 144-145 (2010)
 People vs. Pole, Mamuntag
Criminal Case No. M-QZN-19-
11036
Motion for Leave to File Demurrer
to Evidence
Page 4
-------------------------------------------

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.

While the testimony about a perfect chain is not always the

standard because it is almost always impossible to obtain, an
unbroken chain of custody becomes indispensable and essential
when the item of real evidence is not distinctive and is not
readily identifiable, or when its condition at the time of testing
or trial is critical, or when a witness has failed to observe its
uniqueness. The same standard obtains in case the evidence is
susceptible of alteration, tampering, contamination and even
substitution and exchange. In other words, the exhibit's level of
susceptibility to fungibility, alteration or tampering -without
regard to whether the same is advertent or otherwise not -
dictates the level of strictness in the application of the chain of
custody rule.

Thus, as a general rule, four links in the chain of custody of

the confiscated item must be established:

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 from
the forensic chemist to the court.

11. Here, in the absence of the testimony of the poseur-buyer, the first
stage of the chain custody, or the actual seizure cannot be proven
beyond reasonable doubt.

PRAYER
 People vs. Pole, Mamuntag
Criminal Case No. M-QZN-19-
11036
Motion for Leave to File Demurrer
to Evidence
Page 5
-------------------------------------------

WHEREFORE, the Accused Rolly Tamondong respectfully prays

that he be granted leave from this Honorable Court to file a demurrer to
evidence.

The Accused prays for such other reliefs as are just and equitable
under the premises.

RESPECTFULLY SUBMITTED.

Bayambang for San Carlos City, Pangasinan. 27 January 2018.

MATABAN LAW OFFICE

Poblacion East, Alcala, Pangasinan

By:

VINCENT C. MATABAN
Supreme Court Roll of Attorneys No. 65622
IBP No. 1015186 / 01.03.2017 / Pangasinan
PTR No. 3016487 / 01.04.2017 / Mandaluyong City
Admitted to the Bar in 2016
vcmataban@gmail.com
(0915-277-6109)

NOTICE OF HEARING

BRANCH CLERK OF COURT

REGIONAL TRIAL COURT
Branch 57
San Carlos, Pangasinan

Greetings.

Kindly submit the foregoing Motion for Leave to File Demurrer to

Evidence for the consideration and approval of the Honorable Court.

Thank you.
 People vs. Pole, Mamuntag
Criminal Case No. M-QZN-19-
11036
Motion for Leave to File Demurrer
to Evidence
Page 6
-------------------------------------------

VINCENT C. MATABAN

Copy furnished:

APP EMMANUEL LAFORTEZA

[Public Prosecutor]
c/o Provincial Prosecutor’s Office, San Carlos, Pangasinan

EXPLANATION

This Motion for Leave to File Demurrer to Evidence was served by

registered mail due to the distance, time constraints, and the lack of
sufficient office messengers to personally file and serve the same.

VINCENT C. MATABAN