G.R. No. 124346             June 8, 2004
YOLLY TEODOSIO y BLANCAFLOR, petitioner,
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
D E C I S I O N
Before us is a petition for review of the decision1 dated February 28, 1995 of the Court of Appeals2 affirming with modification the decision3 dated January 18, 1993 of the Regional Trial Court (RTC) of Pasay City, Branch 109, convicting herein appellant Yolly Teodosio of violation of Section 15, Article III of RA 6425 (The Dangerous Drugs Act of 1972), as amended.
Appellant was charged with selling and delivering regulated drugs in an Information that read:
That on or about the 6th day of August 1992, in Pasay City, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused Yolly Teodosio Y Blancaflor, without authority of law, did then and there willfully, unlawfully and feloniously sell and deliver to another Methamphetamine Hydrochloride (shabu), a regulated drug.
Contrary to law.4
During his arraignment on August 19, 1992, appellant pleaded not guilty.
The prosecution presented the following witnesses: SPO1 Jeffrey Inciong, SPO1 Emerson Norberte, Julita de Villa and Marita Sioson.
The evidence of the prosecution showed that, after four days of surveillance on the house of appellant, at around 8:00 p.m. on August 5, 1992, Chief Inspector Federico Laciste ordered a team from the PNP Regional Office Intelligence Unit to conduct a buy-bust operation on appellant who was suspected of peddling regulated drugs known as shabu (methamphetamine hydrochloride). The team was headed by SPO1 Emerson Norberte and composed of SPO1 Jeffrey Inciong, SPO3 Roberto Samoy, SPO3 Pablo Rebaldo and SPO1 Rolando Llanes.5
About midnight, the team and their informer proceeded to the appellant’s house in Solitaria Street, Pasay City. SPO1 Jeffrey Inciong and the informer entered the open gate of appellant’s compound and walked to his apartment while the rest of the team observed and waited outside. At 12:10 a.m., the informer introduced Inciong to the appellant as a shabu buyer. Appellant told them that a gram of shabu cost ₱600. When Inciong signified his intention to buy, appellant went inside his apartment while Inciong and the informer waited outside. A few minutes later, appellant came out and said "Swerte ka, mayroon pang dalawang natira (You are lucky. There are two [grams] left)." When Inciong told appellant that he only needed one gram, the latter gave him one plastic packet. In turn, Inciong handed to appellant ₱600 or six pieces of ₱100 bills earlier treated with ultraviolet powder. After verifying the contents of the packet as shabu,6 Inciong gave the signal to the other police officers who witnessed the transaction. After introducing himself as a police officer, Inciong, together with his companions, arrested appellant.7
The marked money bills,8 the other packet of shabu9 recovered from appellant’s right front pants-pocket and the buy-bust shabu were brought to the PNP Crime Laboratory for examination by forensic chemists Julita de Villa and Marita Sioson. Appellant was also taken to the said laboratory to determine the presence of ultraviolet fluorescent powder. The results were positive in appellant’s hands, the marked money bills and the right front pocket of his pants.10 The buy-bust shabu and the contents of the other packet recovered from appellant were also confirmed to be methamphetamine hydrochloride.11
For his defense, appellant, a driver by profession, claims that police officers raided his house without a search or arrest warrant. When they found no drugs, they took a bag containing a large sum of money. To support his defense, the following witnesses were presented: the appellant himself, Ulysses Ramos (appellant’s neighbor), Marilyn Teodosio (appellant’s wife) and Paul Teodosio (appellant’s 10-year-old son).
Appellant, Marilyn Teodosio and Paul Teodosio alleged that, on August 5, 1992, they were sleeping in their bedroom on the second floor of their apartment when they were suddenly awakened by a noise downstairs. Appellant went down and, while on the third step of the stairs, he met three policemen on their way up. Their guns were pointed at him. One of the three inquired from him where he kept his shabu but he denied having any. The three then searched appellant’s room on the second floor but did not find any shabu. Instead, they took an overnight bag from a locked cabinet which they forcibly opened. The bag contained $7,260 and approximately ₱40,000 belonging to the appellant’s niece who was scheduled for a heart operation. After appellant was arrested by six police officers, he was dragged, slapped and punched in the stomach. As he was being forcibly taken out of his apartment, SPO3 Samoy fired a gun near his ear. On their way to his detention cell in Bicutan, Taguig, his hands were handcuffed behind his back. Appellant felt and saw the police officers rubbing ₱100 bills on his hands.12
Defense witness Ulysses Ramos testified that, after the arrest of appellant, his wife called for police assistance. Two police officers responded while appellant’s son Paul took pictures13 of the broken door and their ransacked apartment. Thereafter, his wife and Marilyn Teodosio went to the police station and formally reported the incident.14
On January 18, 1993, the RTC rendered a decision, the dispositive portion of which read:
IN VIEW OF ALL THE FOREGOING, the Court finds the accused Yolly Teodosio guilty beyond reasonable doubt for (sic) violation of Section 15, Art. III of RA 6425 as amended and hereby sentences him to life imprisonment.
The methamphetamine hydrochloride is hereby forfeited in favor of the government and the Clerk of Court of this Branch is hereby ordered to transmit the same to the Dangerous Drugs Board thru the National Bureau of Investigation for proper disposition.
Pasay City, January 18, 1993.15
In convicting appellant, the trial court relied on the credibility of the testimonies of the prosecution witnesses who were officers of the law without any ill-motive to testify falsely against him. In the absence of proof to the contrary, there was a presumption of regularity in the performance of their official functions. The trial court gave no credence to the claim that the police officers stole a bag containing a large sum of money, considering the failure of appellant’s niece to file a case or even complain against the officers. Also, for the reason that they were biased witnesses, the trial court junked the claim of appellant’s wife and son that the police officers illegally raided their apartment.
Ramos’ testimony was given little weight because he did not actually see the police officers go in and out of the apartment. Furthermore, the trial court dismissed appellant’s claim of a frame-up because this defense, like alibi, could be fabricated with facility and was therefore an inherently weak defense unless proven by clear and convincing evidence. The court also wondered how the appellant could have seen the officers rubbing money on his handcuffed hands behind his back. It also took note of the fact that the appellant, a driver by profession, attempted to cover up his ownership of the 190 square-meter lot and the three-door apartment thereon worth about ₱300,000.16
In view of the imposition of the penalty of life imprisonment, the appeal was originally brought to us. However, the Second Division of this Court ordered the transfer of this case to the Court of Appeals in accordance with our ruling in People vs. Simon y Sunga17 wherein we held that RA 7659 which amended RA 6425, effective December 31, 1993, should be given retroactive application in so far as the amended and reduced imposable penalties provided therein are favorable to the appellant. Section 17 of RA 765918 states that the penalty shall range from prision correccional to reclusion perpetua, depending on the quantity of the drug. In the present case, the amount of shabu sold by appellant was only 0.73 gram, thus the penalty of reclusion perpetua could not be imposed. Such being the case, the appeal should have been filed in the Court of Appeals and not in this Court because we can only exercise exclusive appellate jurisdiction over criminal cases in which the penalty imposed is reclusion perpetua or higher.19
The Court of Appeals, in a decision dated February 28, 1995, affirmed the judgment of the trial court convicting the appellant but modified the penalty imposed, as follows:
Finally, even as We agree on the findings of the lower court on the guilt of the appellant for a Violation of Section 15, Article III, Republic Act 6425, as amended, considering the application of Section 17 of RA 7659, the penalty imposed should be reduced to Ten (10) years of Prision Mayor, as minimum, to Twenty (20) Years of Reclusion Temporal, as maximum.
WHEREFORE, except for the modification of the penalty, as above indicated (sic), the appealed Decision is hereby AFFIRMED, in all other respects. No pronouncement as to costs.20
Agreeing with the factual findings of the trial court, the Court of Appeals gave more weight to the prosecution’s claim that the entrapment operation in fact took place outside the appellant’s apartment. The appellate court gave no merit to appellant’s assertion that no warrant was secured despite four days of surveillance. It described as minor the appellant’s observations of alleged inconsistencies in the prosecution’s version of events.
Hence, this appeal based on the following assignment of errors:
THE TRIAL COURT AND THE COURT OF APPEALS OVERLOOKED CERTAIN MATERIAL AND UNDISPUTED FACTS IN ERRONEOUSLY CONCLUDING THAT THE ALLEGED BUY-BUST OPERATION CONDUCTED WITHOUT A SEARCH WARRANT OR WARRANT OF ARREST TOOK PLACE OUTSIDE THE RESIDENCE OF THE PETITIONER.
BOTH THE TRIAL COURT AND THE COURT OF APPEALS ERRED AS A MATTER OF LAW AND THE CONSTITUTION IN ADMITTING THE PROSECUTION’S EVIDENCE WHICH WAS EITHER PROCURED FROM AN ILLEGAL WARRANTLESS RAID OR FABRICATED BY THE RAIDING POLICEMEN.
The lower court and the Court of Appeals erred in not finding that subjection of petitioner to ultra-violet powder test without assistance of counsel is violative of his constitutional right against self-incrimination.
The Honorable Court of Appeals, sad to say, disregarded and ignored the inherent and natural bias and prejudice of the trial judge, her honor, Judge Lilia LopEz, against persons charged of (sic) drug offenses as duly noted by the Supreme Court in People vs. Sillo, 214 SCRA 74.
The accused is entitled to an acquittal based on reasonable doubt because the evidence of the prosecution is not sufficient to warrant conviction.21
In short, appellant insists that the police officers forcibly entered and searched his house without a warrant. When they did not find any regulated drug, they instead took a bag containing a large sum of money. They also showed their brutality by slapping him and punching him in the stomach. Thereafter, they framed up appellant by wiping ultraviolet powder on his palms.
We affirm appellant’s conviction.
Well-settled is the rule that findings of trial courts which are factual in nature and which involve the credibility of witnesses are to be respected when no glaring errors, gross misapprehension of facts and speculative, arbitrary and unsupported conclusions can be gleaned from such findings.22 Such findings carry even more weight if they are affirmed by the Court of Appeals, as in the case at bar. The alleged flaws pointed out by appellant are not enough for us to reverse the factual findings of the courts a quo.
The police officers were clear and categorical in their narration of how the entrapment operation was conducted. SPO1 Inciong, acting as a poseur-buyer, was introduced by the informer to appellant in front of the latter’s apartment. Thereafter, appellant went inside his apartment and came back with two packets of shabu. Inciong handed to appellant six pieces of ₱100 bills treated with ultra-violet powder in exchange for one packet of shabu. Immediately after, Inciong gave the signal to the other policemen who then entered the compound and effected appellant’s arrest. Recovered from appellant was the other packet of shabu and the six pieces of marked money. The tests conducted on these pieces of evidence, appellant’s hands and right front pants-pocket showed that appellant was the same person who sold the drugs to police officer Inciong. There was strong evidence therefore, certainly beyond reasonable doubt, that appellant was engaged in drug-dealing.
The elements of the crime were duly proven. In the prosecution of the offense of illegal sale of prohibited drugs, what is material is the proof that the transaction or sale actually took place, coupled with the presentation in court of the corpus delicti as evidence.23
On the other hand, appellant insists he was framed up for possession of shabu after the search in his apartment produced no illegal drugs. Frame-up, a usual defense of those accused in drug-related cases, is viewed by the Court with disfavor since it is an allegation that can be made with ease. For this claim to prosper, the defense must adduce clear and convincing evidence to overcome the presumption that the arresting policemen performed their duties in a regular and proper manner.24
However, appellant was unable to prove he was the victim of a frame up. First, appellant failed to show any motive why the police officers would illegally raid his house. Thus, the presumption of regularity in the performance of official duty by the persons in authority was never overcome. Second, if indeed they broke into his apartment and took an overnight bag containing a hefty amount, appellant or any of his family members should have filed a criminal complaint against the supposed malefactors but they did not. This weakened the defense’s story that the police officers stormed and robbed appellant’s apartment. Third, appellant testified that, after the search for shabu proved futile, the police officers dragged and slapped him, and punched him in the stomach. However, appellant never filed a case for physical injuries against the arresting officers. No medical certificate was presented to show his alleged injuries. He never even complained about it to anybody.
To prove his allegation that the arresting officers raided his apartment, appellant quoted officer Inciong’s testimony that "his (Inciong’s) informant introduced him to Yolly Teodosio specifically at the house of Yolly Teodosio." Appellant’s argument is misplaced. The preposition "at" merely signifies that Inciong was within the vicinity of appellant’s apartment. There is nothing in it from which we can infer that Inciong entered appellant’s abode. Moreover, the statement must be taken in conjunction with the rest of his testimony which unequivocally showed that the transaction happened in front of the door of appellant’s apartment, not inside.
Appellant also cites in his defense the police blotter of the Investigation Branch of the Pasay City Police Station:25
x x x.
It was learned that on or about 11:45 p.m. 05 August 1992, a group of RPIU Operatives headed by SPO3 Emerson Norberte went inside the room of 421-C Apartment by forcing to open it and the owner / occupant was brought with them, who was identified as YOLLY TEODOSIO.
x x x.
Unfortunately for appellant, the police blotter does not support his version because entries in police blotters, although done in the regular course of the performance of official duty, are not conclusive proof of the truth stated in such entries and should not be given undue significance or probative value. They are usually incomplete and inaccurate. Sometimes they are based on partial suggestion or inaccurate reporting and hearsay, untested in the context of a trial on the merits.26
Appellant furthermore points out the discrepancies in the testimonies and the joint affidavit of arrest executed by officers Inciong and Norberte. First, the affidavit stated that the second packet of shabu was recovered from appellant’s pants-pocket but the officers’ testimony in court was that it was recovered from appellant’s hands. Second, the affidavit stated that the informer acted as the poseur-buyer but the policemen testified in court that Inciong was the poseur-buyer.
The established rule is that discrepancies between the affidavit of a witness and his testimony in court do not necessarily discredit him because it is a matter of judicial experience that affidavits, being taken ex-parte, are almost always incomplete and often inaccurate. Besides, the testimonial discrepancies may be due to the natural fickleness of memory; this in fact tends to strengthen, rather than weaken, credibility as they erase any suspicion of rehearsed testimony.27
In an attempt to weaken the prosecution’s case, appellant also cites several inconsistencies in the narration of events.
According to appellant, SPO1 Norberte testified that it was SPO1 Inciong who knocked at the door, contrary to Inciong’s own testimony that it was the informer who knocked at the door. This is, however, a minor matter that does not affect the substance of the testimonies of the prosecution witnesses. Minor variances in the details of a witness’ account, more frequently than not, are badges of truth rather than indicia of falsehood and they often bolster the probative value of the testimony.28
Also, according to appellant, the prosecution witnesses testified that the total weight of the confiscated shabu was 2 grams but its actual weight was only 0.73 grams. It must be remembered that during the drug deal, it was appellant who led officer Inciong to believe that each packet of shabu he was selling weighed 1 gram. Inciong, under the circumstances, had no opportunity to verify the actual weight of the drug. Thus, the discrepancy did not in anyway weaken the credibility of Inciong’s testimony that appellant was selling a prohibited drug.
Appellant likewise attacks SPO1 Norberte’s credibility. Norberte claimed that he wrote the serial numbers of the marked money bills after the operation; however, he later declared that he listed the numbers in the logbook before the buy-bust operation. There is no contradiction. Norberte never said that he wrote the serial numbers after the operation. On the contrary, what he said was that he wrote the numbers prior to the buy-bust.29
Appellant likewise points out several instances of improbable behavior in the prosecution’s version of the facts. Appellant believes it is not a discreet and wary behavior of a pusher to bring two packets of shabu after closing a deal for only one packet with an unknown, newly-introduced buyer. Likewise, it is unnatural for a drug pusher to shout while being arrested. His natural tendency is to hush things up so as not to attract the neighbors’ attention. Appellant also swears that he could not have held the money bills because the traces of the powder were only in the thumb and forefinger. This means that he held some sort of a cylindrical object but not money. Moreover, it was unnatural for SPO1 Inciong to be the poseur-buyer instead of the informant considering the caution practiced by pushers in selling only to customers known to them. And, contrary to standard procedure, the police officers did not issue any receipt for the shabu and money bills confiscated from appellant. Lastly, the police authorities had four days to secure a search and arrest warrant but they did not get one.
We dismiss all of appellant’s observations as pure nonsense and inanity that did not in anyway affect the clear and unequivocal testimonies of the prosecution witnesses. No physical or testimonial evidence was presented during the trial to support his allegations. If there was anything such gratuitous statements proved, it was that appellant appeared to be extremely familiar with the intricacies and practices of drug dealers.
As to his allegation that he never held any money bills treated with ultra-violet powder, we note his failure to rebut the unimpeached testimony of forensic chemist Julita de Villa that the yellow ultraviolet powder in the money bills was the same yellow powder found in his fingers.
His argument that the prosecution’s case was weakened by the fact that the police officers did not issue a receipt for the confiscated drugs and money bills, is stretching things too far. Issuing such a receipt is not essential to establishing a criminal case for selling drugs as it is not an element of the crime.
On the argument that the officers had four days to secure a warrant but did not get one, the evidence was that the four-day period was not enough to establish probable cause for the issuance of a warrant. All that the police authorities knew about appellant was the information gathered from the informer and their surveillance of the area. Furthermore, no warrant was needed considering that the mission was not a search but an entrapment. An arrest made after an entrapment does not require a warrant inasmuch as it is considered a valid warrantless arrest pursuant to Rule 113, Section 5(a) of the Rules of Court.30 Any search resulting from a lawful warrantless arrest is valid because the accused committed a crime in flagrante delicto, that is, the person arrested (appellant in this case) committed a crime in the presence of the arresting officers.31
On another constitutional issue, appellant alleges that his right against self-incrimination was violated when he was subjected to ultra-violet powder test without the presence of a lawyer. We disagree. In People vs. Gallarde,32 we held that:
The constitutional right of an accused against self-incrimination proscribes the use of physical or moral compulsion to extort communications from the accused and not the inclusion of his body in evidence when it may be material. Purely mechanical acts are not included in the prohibition as the accused does not thereby speak his guilt, hence the assistance and guiding hand of counsel is not required. (People vs. Olvis, et al., 154 SCRA 513 ) The essence of the right against self-incrimination is testimonial compulsion, that is, the giving of evidence against himself through a testimonial act. (People vs. Casinillo, 213 SCRA 777 ; People vs. Tranca, 235 SCRA 455 ; People vs. Rondero, 320 SCRA 383 ) Hence, it has been held that a woman charged with adultery may be compelled to submit to physical examination to determine her pregnancy; (Villaflor vs. Summers, 41 Phil. 62 ) and an accused may be compelled to submit to physical examination and to have a substance taken from his body for medical determination as to whether he was suffering from gonorrhea which was contracted by his victim;(U.S. vs. Tan Teng, 23 Phil. 145 ) to expel morphine from his mouth; (U.S. vs. Ong Siu Hong, 36 Phil. 735 ) to have the outline of his foot traced to determine its identity with bloody footprints;(U.S. vs. Salas, 25 Phil. 337 ; U.S. vs. Zara, 42 Phil. 308 ) and to be photographed or measured, or his garments or shoes removed or replaced, or to move his body to enable the foregoing things to be done.(People vs. Otadora, et al., 86 Phil. 244 )
Appellant also questions the impartiality of Judge Lilia Lopez who allegedly had an inherent bias against persons facing drug charges. We seriously doubt the fairness of the accusation. Nevertheless, it is now too late for the appellant to raise this defense because the good judge’s impartiality was never questioned during the trial and the appeal to the Court of Appeals. Moreover, no evidence was presented on any specific act manifesting partiality against appellant.
We now determine whether the appellate court imposed the proper penalty on appellant. In the 1994 case of People vs. Simon y Sunga,33 the proper penalties for drug-related crimes under RA 6425, as amended by RA 7659, were clarified. The appropriate penalty is reclusion perpetua if the quantity of the drug weighs 750 grams or more. If the drug weighs less than 250 grams, the penalty to be imposed is prision correccional; from 250 grams to 499 grams, prision mayor; and, from 500 grams to 749 grams, reclusion temporal.34
Since appellant was caught selling 0.73 grams of shabu only, the proper penalty should be no more than prision correccional. There being neither generic mitigating nor aggravating circumstances, the penalty of prision correccional shall be imposed in its medium period. And applying the Indeterminate Sentence Law, the minimum period shall be within the range of the penalty next lower in degree which is arresto mayor. No fine is imposable in this case because appellant’s penalty is not reclusion perpetua or death.35 Pursuant to our jurisprudence on the sale of less than 1 gram of shabu,36 we therefore impose the penalty of 6 months of arresto mayor, as minimum to 4 years and 2 months of prision correccional as maximum.
WHEREFORE, the decision dated February 28, 1995 of the Court of Appeals convicting herein appellant Yolly Teodosio for the sale of 0.73 grams of shabu is hereby AFFIRMED, with the MODIFICATION that the penalty of imprisonment imposable on appellant should be the indeterminate sentence of 6 months of arresto mayor as minimum to 4 years and 2 months of prision correccional as maximum.
Vitug, Sandoval-Gutierrez, and Carpio-Morales, JJ., concur.
1 Penned by Associate Justice Fidel P. Purisima (former Associate Justice of the Supreme Court), and concurred in by Associate Justices Jainal D. Rasul and B.A. Adefuin-de la Cruz; Rollo, pp. 37-47.
2 Special Second Division.
3 Penned by Judge Lilia C. Lopez, Regional Trial Court Records, pp. 389-406.
4 Regional Trial Court Records, p. 1.
5 TSN, October 19, 1992, pp. 3-4, 10.
6 Exhibit "N-2."
7 TSN, September 2, 1992, pp. 2-7; TSN, September 19, 1992, pp. 5-9.
8 Exhibits "A," "A-1," "A-3," "A-4" and "A-5".
9 Exhibit "N-3."
10 TSN, September 14, 1992, pp. 3-8.
11 Exhibits "L" and "M"; TSN, September 17, 1992, pp. 2-6.
12 TSN, November 24, 1992, pp. 2-8; TSN, November 24, pp. 24-30; TSN, November 25, 1992, pp. 2-7; TSN, December 3, 1992, pp. 9-14.
13 Exhibits "5," "6" and "7".
14 TSN, November 24, 1992, p. 29.
15 Regional Trial Court Records, p. 406.
16 Regional Trial Court Records, p. 402-405.
17 234 SCRA 555 .
18 SEC. 17. Section 20, Article IV of Republic Act No. 6425, as amended, known as the Dangerous Drugs Act of 1972, is hereby amended to read as follows:
"SEC. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or Instruments of the Crime. – The penalties for offenses under Sections 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act shall be applied if the dangerous drugs involved is in any of the following quantities:
1. 40 grams or more of opium;
2. 40 grams or more of morphine;
3. 200 grams or more of shabu or methylamphetamine hydrochloride;
4. 40 grams or more of heroin;
5. 750 grams or more of indian hemp or marijuana;
6. 50 grams or more of marijuana resin or marijuana resin oil;
7. 40 grams or more of cocaine or cocaine hydrochloride; or
8. In the case of other dangerous drugs, the quantity of which is far beyond therapeutic requirements, as determined and promulgated by the Dangerous Drugs Board, after public consultations/hearings conducted for the purpose.
Otherwise, if the quantity involved is less than the foregoing quantities, the penalty shall range from prision correccional to reclusion perpetua depending upon the quantity.
19 Art. VIII, Sec. 5, Constitution.
20 Rollo, p. 47.
21 Rollo, pp. 14, 20, 22, 23, 24.
22 People vs. Mirafuentes, 349 SCRA 204 ; People vs. Flores, 252 SCRA 31 ; People vs. Bahuyan, 238 SCRA 330 ; People vs. Sanchez, 250 SCRA 14 .
23 People vs. San Juan, 377 SCRA 13 ; People vs. Bay, 222 SCRA 723 ; People vs. Castro, 274 SCRA 115, 122 ; People vs. Lacerna, 278 SCRA 561 ; People vs. Lacbanes 270 SCRA 201 .
24 People vs. Zheng Bai Hui, 338 SCRA 420, 478 ; People vs. Boco, et al. 309 SCRA 42, 65 ; People vs. Clapano, 227 SCRA 598, 604, .
25 Exh. 8, Records, p. 370.
26 People vs. Rendoque, 322 SCRA 622 .
27 People vs. Molina, 311 SCRA 517, 526 .
29 TSN, October 19, 1992, p. 20.
30 SEC. 5. Arrest without a warrant; when lawful.- A peace officer or a private person may, without a warrant, arrest a person:
x x x           x x x           x x x
(b) When in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;
x x x           x x x           x x x
31 People vs. de Leon, 391 SCRA 682 .
32 325 SCRA 835 .
33 Supra, Note 17.
34 People vs. Concepcion, 361 SCRA 716 ; People vs. Elamparo, 329 SCRA 404 , citing People vs. Simon, supra.
36 De Leon vs. Court of Appeals, 262 SCRA 690 ; People vs. Piasidad, 262 SCRA 752 ; People vs. Manalo 245 SCRA 492 ; Danao vs. Court of Appeals, 243 SCRA 494 .
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