APRIL 4, 2018

G.R. No. 197645

CARLOSE JAY ADLAWAN, Petitioner

vs
PEOPLE OF THE PHILIPPINES, Respondent

DECISION

MARTIRES, J.:

This petition for review on certiorari seeks to reverse and set aside the 15 September 2010
Decision 1 and 15 June 2011 Resolution2 of the Court of Appeals (CA) in CA-G.R. CR No. 00555. The 15
September 2010 Decision affirmed with modification the 17 August 2006 Joint Judgment 3 of the Regional
Trial Court of Cebu City, Branch 5, in Criminal Case Nos. CBU- 68828 and CBU-68829, which found
herein petitioner Carlos Jay Adlawan (petitioner) guilty beyond reasonable doubt of the crime of
Frustrated Homicide; while the 15 June 2011 Resolution denied petitioner's Motion for
Reconsideration 4 of the 15 September 2010 Decision, and the Joint Motionto Dismiss and to Admit
Private Complainant's Affidavit of Recantation and Desistance. 5

THE FACTS

On 5 March 2004, herein petitioner was charged with the crimes of Frustrated Murder and Attempted
Robbery under two Informations.6

On 25 March 2004, petitioner, with the assistance of counsel, was arraigned and pleaded not guilty to the
charges against him. 7 Trial on the merits thereafter ensued.

Evidence for the Prosecution

During trial, evidence for the prosecution showed that petitioner was one of the five (5) children of the late
Alfonso V. Adlawan (Alfonso) from his first marriage, while private complainant Georgia R.
Adlawan (Georgia) was the second wife of Alfonso and the stepmother of the petitioner. 8 Alfonso and
Georgia, their adopted daughter, and the former's five (5) children all lived together in their residence at
Brgy. Lipata, Minglanilla, Cebu. 9 Georgia was engaged in the construction business; 10 on the other
hand, petitioner was jobless. His legs had been operated on and were braced with stainless steel. 11

On 18 February 2004, at around 5:30 P .M., Georgia arrived home. She was taking her dinner when she
heard the petitioner talking with Cornelio Selin 12 (Cornelio), the Adlawans' houseboy, in the backyard.
The petitioner asked Cornelio in a loud voice "unsa na?" ("what now?"). After eating, Georgia proceeded
to the backyard to ask Cornelio what the conversation was about. On her way to the yard, she met the
petitioner who proceeded to his room on the second floor. 13

While Georgia was talking to Cornelio, the petitioner came back and angrily asked Georgia "asa ang
kwarta?" ("where is the money?"). She replied saying, "unsa, wa mo kahibalo nga na ospital inyong
amahan?" ("why, don't you know that your father is in the hospital?"). 14 Apparently earlier that day,
Georgia instructed her secretary Maria Reina Lastimosa (Maria Reina) to withdraw ₱100,000.00 from the
Development Bank of the Philippines in Cebu City to pay for the hospital bills of Alfonso. 15

Thereafter, the petitioner furiously told her "mura kag kinsa!" ("as if you are somebody!"), and started
hacking her using a katana, 16 hitting her on the left portion of the neck and on the stomach. Georgia
parried the blows using her hands. 17 Georgia ran towards the garage in front of the house, but petitioner
pursued her and continued his attack, hitting her shoulders and her back until she fell down. 18 Sensing
that petitioner would finish her off, she summoned all her strength, kicked his leg, and then grabbed and
squeezed his sex organ. 19

After petitioner fell down, Georgia walked towards Baking Medical Hospital located a few meters away
where she was given immediate medical attention. Thereafter, she was transferred to Perpetual Succour
Hospital in Cebu City.20

The medical certificate21 prepared by Dr. Rogelio Kangleon (Dr. Kangleon) of the Perpetual Succour
Hospital revealed that Georgia sustained the following injuries: (1) laceration occipital on the scalp, 3 cm
long (sutured); (2) penetrating laceration on left lateral neck, 15 cm long (sutured), with surroanding
contusion/hematoma; (3) laceration on left scalpular area, 8 cm long (sutured), with surrounding
contusion/hematoma; ( 4) laceration on left ankle, 6 cm long (sutured); (5) multiple contusion/hematomas:
right shoulder, right hand, left arm, left ear, left wrist, and hand, left breast, both knees; (6) superficial
laceration with surrounding contusion/hematoma, 30 cm long on the anterior abdomen; and (7) superficial
laceration, 12 cm long left upper back.

Georgia's version of the incident was corroborated by prosecution witness Fred John Dahay (Fred), 22 the
Adlawans' multicab driver who testified having witnessed Georgia being chased and hacked by petitioner.
The prosecution also presented Maria Reina, Georgia's secretary, who confirmed that she was instructed
to withdraw ₱100,000.00 for Alfonso's hospital bills.23

The prosecution also presented as witnesses the police officers who investigated the crime, namely:
Police Senior Inspector Germano Mallari (PSI Mallari), 24 Police Officer 3 Renato Masangkay, 25 Police
Inspector Carlos C. Reyes, Jr., 26 and Senior Police Officer 4 Ernesto Navales. 27 However, in the course
of his cross-examination, PSI Mallari admitted that they searched petitioner's room and seized the
weapons they found therein without a search warrant and without petitioner's consent. 28

Aside from the medical certificate, the nature of the injuries sustained by Georgia was shown in the
photographs29taken by a certain Charlita Gloria who was also presented as witness and who identified
the photographs.30 Further, Dr. Kangleon, during his testimony, also suggested that, based on their
appearance, the injuries were indeed hack wounds. 31 He also testified that Georgia's wounds, particularly
the hack wound on the left neck, would have been fatal if not for the timely medical intervention. 32

Version of the Defense

Petitioner did not take the witness stand. Instead, the defense presented Cornelio as its sole witness.

Cornelio testified that he had been the cook of the Adlawans since 1993. 33 On 18 February 2004, at
around five o'clock in the afternoon, Georgia instructed him to collect the office garbage. 34 The office was
one of the rooms in front of the house. 35 On his way there, Cornelio met the petitioner who was holding a
cup of coffee. The petitioner asked him where he was going, to which he replied that he was instructed to
clean the office. While cleaning, he noticed Georgia running towards the multicab and shouting for help,
while petitioner was about two meters away, following her.36 Georgia was about to board the multicab
when she slipped and fell, causing her injuries. 37 He was about to help Georgia, but when he saw her
kick petitioner on the leg and private part, he desisted and, pulled petitioner away and told him to go
inside the house. 38 Cornelio denied seeing petitioner hack Georgia.39 He also refuted the claim that
petitioner was carrying a weapon at that time.40

The RTC Ruling

In its joint judgment, the RTC acquitted petitioner of attempted robbery in Criminal Case No. CBU-68829,
but convicted him of the crime of frustrated homicide in Criminal Case No. CBU-68828.
On the acquittal, the trial court ratiocinated that the evidence offered by the prosecution was insufficient to
prove the attempted robbery. It pointed out that the petitioner merely asked where the money was, but
such inquiry was not accompanied by any overt act which would constitute the crime of attempted
robbery.

As regards the conviction for frustrated homicide, the trial court was convinced that petitioner repeatedly
hacked and mortally wounded Georgia. It stressed that Fred, the eyewitness, and Georgia, the victim,
herself positively identified petitioner as the perpetrator of the crime. The trial court further ruled that,
based on the findings and testimony of Dr. Kangleon, petitioner performed all the acts of execution
necessary for the commission of homicide. Fortunately, due to timely medical intervention, Georgia's life
was saved and, thus, the crime committed by petitioner was only in its frustrated stage. The trial court
also appreciated the presence of the aggravating circumstances of abuse of superior strength and
disregard of the respect due to the offended party on account of her age, sex, and her being the
petitioner's stepmother.

The dispositive portion of the joint judgment reads:

WHEREFORE, in view of the foregoing, the court finds the accused guilty beyond reasonable doubt of
the crime of Frustrated Homicide with the generic aggravating circumstances of using superior strength
and with insult or in disregard of the respect due to the offended party on account of her being a
stepmother, age and sex, and hereby sentences him, after applying the Indeterminate Sentence Law, to
suffer imprisonment from six (6) years of prision correccional, as minimum, to twelve (12) years of prision
mayor, as maximum. The court also orders him· to indemnify the victim Georgia Adlawan ₱30,000.00 as
moral damages and all her medical expenses, without subsidiary imprisonment in case of insolvency. 41 x
xx

Aggrieved, the petitioner filed a notice of appeal to elevate the case to the CA. 42

The CA Ruling

In its assailed decision, the CA affirmed with modification the joint judgment of the RTC. The appellate
court concurred with the trial court's observation that the prosecution was able to establish by proof
beyond reasonable doubt that petitioner, with intent to kill, hacked and inflicted mortal wounds upon
Georgia. The appellate court, thus, opined that the trial court correctly convicted the petitioner of
frustrated homicide.

The appellate court, however, observed that the trial court erred when it appreciated the ordinary
aggravating circumstances of abuse of superior strength and insult or disregard of the respect due to the
offended party, as these circumstances were not alleged in the information against the petitioner.
Consequently, it modified the penalty imposed by the trial court upon petitioner. The dispositive portion of
the assailed decision provides:

WHEREFORE, premises considered, the assailed Decision of the Regional Trial Court of Cebu City,
Branch 5, is MODIFIED in that appellant Carlos Jay Adlawan is hereby sentenced to suffer a prison term
of six (6) years of prision correccional as minimum, to ten (10) years of prision mayor as maximum. In all
other respects, the appealed Decision is AFFIRMED.43

On 7 October 2010, the petitioner filed a motion for reconsideration before the CA wherein he reiterated
the arguments raised in his appeal.

On 28 December 2010, the petitioner, with Georgia's conformity, filed a Joint Motion to Dismiss and to
Admit Private Complainant's Affidavit of Recantation and Desistance. Apparently, on 10 December 2010,
Georgia executed an Affidavit of Recantation and Desistance,44 wherein she admitted fabricating the
accusations against the petitioner. She claimed that she sustained injuries on 18 February 2004 when
she accidentally smashed herself against the clear glass door of their dining room and after she slipped
when she was about to board their multicab.

In its Resolution of 15 June 2011, the appellate court denied the petitioner's motion for reconsideration
and the joint motion to dismiss and to admit private complainant's affidavit of recantation and desistance.
The appellate court reasoned that the motion for reconsideration merely reiterated the arguments which
had already been passed upon in the assailed decision; and that as a rule, an affidavit of desistance, by
itself, cannot be a ground for the dismissal of the present case.

Unsatisfied, the petitioner filed the present petition for review on certiorari; wherein the petitioner raised
the following:

ISSUES

I.

WHETHER THERE WAS GRAVE FAILURE OF APPELLATE REVIEW BY THE COURT OF APPEALS,
RENDERING ITS DECISION VOID.

II.

WHETHER THE COURT OF APPEALS GRAVELY ERRED WHEN IT DISREGARDED THE PRIVATE
COMPLAINANT'S AFFIDAVIT OF RECANTATION AND DESISTANCE AND DECLARED THAT IT IS
NOT A GROUND FOR THE DISMISSAL OF AN ACTION ONCE IT HAS BEEN INSTITUTED IN
COURT.45

The petitioner argues that the CA did not make a real and honest review of his case because it did not
thoroughly pass upon the issues it raised in his appeal brief. In particular, the petitioner insists that the CA
erred when it failed to consider that the prosecution witnesses failed to establish intent to kill, that the
weapon allegedly used in the hacking was not legally presented in court, that the injuries sustained by the
private complainant were not serious enough as to cause death, and that the inconsistencies in the
testimony of the private complainant clearly shows that she merely fabricated the alleged assault.

The petitioner further argues that the CA erred when it did not consider the private complainant's affidavit
of recantation and desistance. He asserts that the affidavit merely confirmed what the records of the case
already revealed - that Georgia had fabricated her allegations against him. Thus, the affidavit of
desistance would not be the sole basis for the dismissal of the case.

THE COURT'S RULING

The petition utterly lacks merit.

The first assignment of error

involves issues not reviewable by
this Court under Rule 45
of the Rules of Court.

At the onset, the Court holds that the petition fails as the issues it raised involves questions of fact which
are not reviewable in a petition for review on certiorari under Rule 45 of the Rules of Court.

It is a fundamental rule that a petition for review on certiorari filed with this Court under Rule 45 of the
Rules of Court shall raise only questions of law. 46 There is a question of law when a doubt or a difference
arises as to what the law is on a certain state of facts, and the question does not call for an examination
of the probative value of the evidence presented by the parties-litigants. On the other hand, there is a
question of fact when the doubt or controversy arises as to the truth or falsity of the alleged facts, 47 as
when the query necessarily solicits calibration of the whole evidence considering mostly the credibility of
witnesses, existence and relevance of specific surrounding circumstances, their relation to each other
and to the whole, and probabilities of the situation. 48 Simply put, when there is no dispute as to the facts,
the question of whether the conclusion drawn therefrom is correct or not, is a question of law. 49

Although petitioner drafted his first assignment of error to make it appear that the appellate court failed to
accord him due process of law, a reading of its discussion clearly reveals that such assignment of error
involves questions pertaining to the credibility of the prosecution witnesses and the relevance and
admissibility of the pieces of evidence presented by the prosecution. Further, the first assignment of error
would entail a review of the evidence pertaining to the injuries sustained by the private complainant and a
re-assessment to determine whether such injuries would have caused death if not for timely medical
intervention. These are questions of fact which are not properly reviewable in a petition for review
on certiorari.

It has been consistently held that in a petition for review on certiorari, the Court does not sit as an arbiter
of facts for it is not its function to analyze or weigh all over again the evidence already considered in the
following proceedings. 50 Such factual findings can be questioned only under exceptional circumstances
which are not present in this case. For this reason alone, the present petition must fail.

In any case, even on the assumption that exceptional circumstances obtain to question the factual
findings of the trial and appellate courts, the petition would still fail for being unmeritorious.

There was no failure of appellate

review.

Contrary to the petitioner's insinuation, the appellate court did not err when it concurred with the trial
court's factual findings resulting in his conviction for frustrated homicide.

Every decision or final resolution of the CA in appealed cases shall clearly and distinctly state the findings
of fact and the conclusions of law on which it is based, which may be contained in the decision or final
resolution itself, or adopted from those set forth in the decision, order, or resolution appealed from. 51 The
Court is satisfied that the appellate court has complied with these requirements.

First, petitioner claims that the testimonies of the prosecution witnesses failed to establish intent to kill,
and that her injuries were not so serious as to cause her death.

It is a fundamental rule, however, that when the issue is one of credibility of witnesses, an appellate court
will normally not disturb the factual findings of the trial court, unless the lower court has reached
conclusions that are clearly unsupported by evidence, or unless it has overlooked some facts or
circumstances of weight and influence which, if considered, would affect the results. 52 As aptly observed
by the appellate court, no ground exists which would prompt it to overturn the factual findings of the trial
court.

In criminal cases for frustrated homicide, the intent to kill is often inferred from, among other things, the
means the offender used and the nature, location, and number of wounds he inflicted on his victim. 53 In
this case, intent to kill was sufficiently shown not only by the testimonies of Georgia, the victim herself,
and Fred, the eyewitness, but also by the established fact that Georgia sustained multiple deep hack
wounds on her head, neck, and abdomen, among other parts of her body.

The gravity of these wounds was clearly shown by the photographs presented by the prosecution, and
the medical certificate. Dr. Kangleon even testified that Georgia could have died if no medical attention
was given to her. The medical opinion of Dr. Kangleon who is presumably an expert in this field is clearly
more convincing than the petitioner's mere say-so.

That petitioner intended to kill Georgia, and that the injuries she sustained were fatal and would have
caused her death if not for the timely medical intervention, were therefore established by proof beyond
reasonable doubt.

Second, petitioner points out that the weapon which was allegedly used in the commission of the crime
was improperly presented in court as it was illegally seized by the authorities.

Although the Court agrees that the "katana" that the prosecution offered in evidence is indeed
inadmissible, such fact would not benefit him. In fact, the inadmissibility of the said weapon had already
been considered by the CA in its decision, thus:

Although the weapon used by the appellant was never found, the nature of the injuries sustained
by the victim establishes that she was struck by a long bladed weapon. The number of wounds
sustained and the fact that the victim was chased by the appellant even after she fled clearly evince his
intent to kill. Her injury particularly on the left neck area would have been fatal except for the timely
medical intervention of witness Dr. Kangleon xx x.54 (emphasis supplied)

The non-identification or non-presentation of the weapon used is not fatal to the prosecution's cause
where the accused was positively identified. 55 Thus, the CA correctly affirmed petitioner's conviction for
frustrated homicide despite the inadmissibility of the weapon presented in evidence. Georgia positively
identified petitioner as the person who hacked him. Her testimony was corroborated by Fred who
categorically declared that petitioner chased and hacked Georgia. The testimonies of the witnesses were
further buttressed by other evidence including the photographs of Georgia's wounds and the medical
certificate. The credibility of these testimonies and evidence is now beyond dispute.

Lastly, petitioner asserts that Georgia committed material inconsistencies which clearly show that she had
merely fabricated the alleged assault.1âwphi1 After reviewing the alleged inconsistencies, the Court
opines that they refer only to minor particulars which do not affect the credibility of Georgia's testimony.
Inconsistencies on minor details do not undermine the integrity of a prosecution witness.56

In fine, the Court finds that there was no error in the CA's performance of its appellate review. Further,
contrary to the petitioner's allegations, the CA considered all the issues and arguments he raised in his
appeal. Its findings of fact as well as its conclusions were clearly and distinctly stated and explained in its
assailed decision. Thus, the CA's 15 September 2010 decision affirming petitioner's guilt for frustrated
homicide is valid in all respects.

The Court of Appeals did not err

in disregarding the private complainant's affidavit of
desistance and recantation.

Going now to the second issue, the petitioner insists that the CA should have dismissed the case based
on Georgia's affidavit of desistance and recantation. He contends that the affidavit of desistance and
recantation casts serious doubt on his criminal liability.

Mere retraction by a witness or by complainant of his or her testimony does not necessarily vitiate the
original testimony or statement, if credible. The general rule is that courts look with disfavor upon
retractions of testimonies previously given in court. 57
It is only where there exist special circumstances which, when coupled with the desistance or retraction
raise doubts as to the truth of the testimony or statement given, can a retraction be considered and
upheld. 58

Thus, it has been held that an affidavit of desistance is merely an additional ground to buttress the
accused's defenses, not the sole consideration that can result in acquittal. To reiterate, there must be
other circumstances which, when coupled with the retraction or desistance, create doubts as to the truth
of the testimony given by the witnesses during trial and accepted by the judge. 59

Further, it is settled that an affidavit of desistance made by a witness, including the private complainant,
after conviction of the accused is not reliable, and deserves only scant attention. 60 The rationale for the
rule is obvious: affidavits of retraction can easily be secured from witnesses, usually through intimidation
or for a monetary consideration.61

Here, the Court finds credible the testimony given by Georgia in open court. Her testimony was clear,
candid, and straightforward. She positively identified petitioner as the person who hacked her several
times. She did not waver in her identification despite the arduous direct and cross-examinations
conducted on her. The Court notes that a total of four settings were needed to complete Georgia's
examinations. Despite this, she remained steadfast in her testimony and her narration of the incident was
consistent in all material aspects. The credibility of Georgia's testimony is clear.

On the other hand, Georgia's affidavit of recantation and desistance is unreliable.1awp++i1 To recall, the
affidavit was executed after petitioner had already been convicted by the trial and appellate courts.
Moreover, Georgia's explanation therein on how she sustained her wounds defies common sense. In her
affidavit, Georgia explained that:

Thus, when the animosity was at its worst, I had an altercation with Carlos Jay Adlawan which, out of
fear, I ran away from him and in the process I accidentally smashed against the clear glass door in
the dining room injuring my head and neck. I ran outside the house and hurriedly tried to board the
Multicab which was parked in our garage, however, my foot slipped and I fell down towards the side of
the said vehicle, causing me several injuries. Thereafter, I ran towards the nearby Baking hospital. I
bitterly attributed all these injuries to Accused Carlos Jay Adlawan. 62 (emphasis supplied)

The photographs showing Georgia's wounds and the medical certificate prepared by Dr. Kangleon tell a
story different from what Georgia would now want this Court to believe. By the appearance and nature of
these wounds, only a gullible person would believe that they were the result of accidentally smashing
oneself against a glass door. Indeed, crystal clear from the photographs is the fact that her wounds were
inflicted by a long bladed weapon. Georgia's wounds, especially the ones on the neck, abdomen, and
shoulder, were long, deep, and straight gashes inconsistent with injuries sustained from broken glass.

The Court does not dismiss the possibility that Georgia voluntarily executed her affidavit of recantation
and desistance. It may be true that the parties no longer harbor ill feelings towards each other, and the
spirit of compassion had already replaced the animosity between them. However, this fact alone is
insufficient to absolve petitioner from criminal liability. As previously discussed, no special circumstance
exists which would create doubt as to the truth of the testimony Georgia gave in open court during trial.
Thus, though the parties have already reconciled, the fact remains that petitioner committed a crime for
which he must suffer the penalties prescribed by law

WHEREFORE, the petition is DENIED. The 15 September 2010 Decision and 15 June 2011.Resolution
of the Court of Appeals in CA-G.R. CR No. 00555 are AFFIRMED.

SO ORDERED.
SAMUEL R. MARTIRES
Associate Justice