Republic of the Philippines

DEPARTMENT OF JUSTICE
OFFICE OF THE CITY PROSECUTOR
rd
3 Floor, DOJ Building, D.A. Compound, M. Velez Street, Guadalupe
6000 Cebu City

PROS. ROGELIO D. DEL PRADO

Handling Prosecutor

CLIFFORD EWICAN SABAS, NPS DOCKET NO. VII-09-E-INQ-21E-

Complainant, 02527

-versus- FOR: FRUSTRATED MURDER

VELLIEFLOR LAPOT MADDEN,

Respondent.
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MOTION FOR RECONSIDERATION

(RESOLUTION ON INQUEST CASE)
[WITH FORMAL ENTRY OF APPEARANCE AS COUNSEL FOR THE
COMPLAINANT]

COMES NOW, private complainant-movant, by the undersigned counsel,

unto this Honorable Court, most respectfully moves for reconsideration of the
public prosecutor’s Resolution dated 10 May 2021 and received on the same
day by the private complainant, the dispositive portion of which states as
follows:

“For reasons stated, there is not enough evidence to convince the

undersigned investigator that probable cause exists for the indictment of
herein respondent for the crime of Frustrated Murder or its related
offense, hence, this case is hereby dismissed.”

on the following—

GROUNDS
 1. The Public Prosecutor committed serious error in finding that there
is no probable cause that exists;

2. The Public Prosecutor is duty bound to determine the probable

cause, whether the same exists or not, and not to the decide the case
on the basis of its merits because the same falls under the task of the
court;

3. The private complainant has no knowledge, not until the incident

occurred, that the respondent is a woman;

4. The Private Prosecutor committed a serious error when he chose to

ignore the presence of the weapon, admitted to be used by the
respondent, during the inquest, while no weapon was said to be
recovered from the private complainant which was also admitted by
the police investigator who made the actual inspection at the area
where the incident happened;

5. The Public Prosecutor committed a serious error when it failed to

consider what the respondent uttered “Patyon tika!(I will kill you!) as
alleged in Answer No. 30 and 31 where the intent to kill as one of the
elements of this case is present.

6. The Public Prosecutor committed a serious error when he ruled that

the act of the respondent was a mere act of self-defense.

MANIFESTATION

Before delving into the issues, arguments and discussions of this case,
the movant would like to manifest that he was already anticipating of the
dismissal of the case and there were reservations whether this case would
prosper or not because of the following:
 1. When the undersigned counsel arrived at Police Station 10, there
was something fishy smell already because instead of accommodating the
complainant, his witness, Mark Japhet Tecson, and your truly were not
accommodated by the police investigator because the latter was so busy
entertaining the family of the respondent, and the latter’s counsel. As matter
of fact, when the undersigned counsel arrived, the police investigator, the
family of the respondent and their counsel were talking in front of the front
desk and when the undersigned approached and introduced himself as the
lawyer of the private complainant, the police investigator brought all those
people inside the air-conditioned room while the side of the complainants
were left outside. Is that fair?

2. The police investigator appeared to be so pressured by the

respondent’s family because the latter, on that very night, wanted to have the
respondent out from the jail.

3. PNP-Station 10 did not prepare the case against the respondent

and as a matter of fact, it was the undersigned who volunteered to prepare the
case. It is highly unimaginable that the incident happened on a Saturday, at
around 10:00 o’clock in the evening, more or less, and yet, no case has been
prepared against the respondent by the police officer. Then Sunday came,
May 9, 2021, still no case has been prepared against the respondent. What
does it mean by that? It came to a point then that the undersigned
volunteered to prepare the case against the respondent just to accommodate
the job which was not done by the police. Is that right?

4. When Monday came, May 10, 2021, the undersigned counsel had
just let the Station Commander sign the cover letter of the case.

Thus, when the case was dismissed, it was not a surprise for the private
complainant because for him, the filing of this case was a mere formality at all.
It is the saddest day of the private complainant-movant that he almost lost his
life had he not prevented the stabbing by using his hand, and were it not of the
timely treatment at the hospital; yet, the case was dismissed.

Nevertheless, the case does not stop here and the movant still hopes
that justice be served soon.

ARGUMENTS AND DISCUSSIONS

What is probable cause? Probable cause is the existence of such facts

and circumstances as would excite the belief in a reasonable mind, acting on
the facts within the knowledge of the prosecutor, that the person charged was
guilty of the crime for which he was prosecuted.

“Probable cause is a reasonable ground of presumption that a matter is,

or may be, well founded, such a state of facts in the mind of the prosecutor as
would lead a person of ordinary caution and prudence to believe, or entertain
an honest or strong suspicion, that a thing is so. The term does not mean an
“actual and positive cause” nor does it import absolute certainty. It is merely
based on opinion and reasonable belief. Thus, a finding of a probable cause
does not require an inquiry into whether there is sufficient evidence to
procure a conviction. It is enough that it is believed that the act or omission
complained of constitutes the offense charged. Precisely, there is a trial for
the reception for the reception of evidence of the prosecution in support of
the charge” (Diodado Jose Allado, et. Al., vs. Hon. Roberto C. Diokno, G.R. No.
113630, May 5, 1994).

In the case at bar, the movant got wounded and suffered plenty of stab
wounds after the attack made by the respondent. Common sense dictates that
attacking does not, in any way, tantamount to self-defense. In the first place, it
was the respondent who entered the gate where the abode of the respondent
was located. The respondent was shouting when she was able to enter the
gate. The shouting did not stop there, as she continued until she reached at a
very close distance from the door of the room where the movant was living.
 It is worthy to note, based on the affidavit, that the respondent shouted
at the movant and Mark Japhet Tecson because she wanted the two (2) to
leave right then and there despite the agreement they have with the barangay
that the movant and Mark Japhet Tecson would be leaving by the end of the
month.

Because of the arrogance and disrespect displayed by the respondent,

the movant went out to confront why she was shouting; that instead of
confrontation, stabbing ensued. Worse, the aunt of the respondent held the
left arm of the movant and it was the reason why the respondent successfully
stabbed the left side of stomach of the movant (left quadrant abdomen, in the
medical certificate). Were it not of the timely medical attention, the movant
would have died.

Admittedly, the respondent is the landlady of the movant but being a

landlady, under the law, does not permit her to just enter the gate of the
movant without the latter’s permission.

On the other hand, during the inquest proceeding, the respondent

alleged that there was a baseball bat, allegedly used by the movant, and the
latter hit the respondent. If the same was true, the size of the respondent
could not take the injury, for sure, if she was, indeed, hit with a baseball bat.
She could have suffered the worst injury. It is to be remembered that the
respondent and her aunt, Mely Alvarico, could not even identify exactly the
color of the bat; thus, there is more reason to doubt if there was really a
baseball bat. Had there been a baseball bat, the movant would not sustain
stab wounds in his stomach and at his back. If it was true that the movant has
been holding a baseball bat, how come he sustained stab wound is his left
hand? In addition, the police investigator confirmed that he did not see any
baseball bat inside the room of the movant despite the same was made
available for him to see by Japhet Tecson. The respondent was not prevented
from taking photos and conducting inspection thereat.
 In the same proceeding, the respondent admitted that she wounded the
movant because she was using another weapon and denied to have used an
ice pick and kitchen knife. She even showed to the Public Prosecutor a
pointed tool which she admitted to she used in inflicting injury against the
movant.

Taking into consideration the blood, the wounds, and the weapon used
by the respondent during the incident, it is highly impossible for the Public
Prosecutor to dismiss the case for lack of probable cause.

The Public Prosecutor, in the same manner, dismissed the case because
of the alleged lack of intent to kill. The movant would like to bring the Public
Prosecutor’s attention to Questions and Answers No. 30 and 31 where the
respondent while in the act of stabbing towards movant, she shouted “Patyon
tika! (I will kill you!) Is the intent to kill not present in this incident? It is
worthy to note that respondent took plenty of acts of stabbing upon the
movant; meaning, she really wanted to end the life of the movant. In  Rivera
v. People, G.R. No. 166326, January 25, 2006, 480 SCRA 188, the Supreme
Court said that—

“Intent to kill may be proved by: (a) the means

used by the malefactors; (b) the nature, location and
number of wounds sustained by the victim; (c) the
conduct of the malefactors before, at the time, or
immediately after the killing of the victim; (d) the
circumstances under which the crime was committed;
and (e) the motives of the accused”.

In the case at bar, the respondent committed the crime during night time;
10:00 o’clock in the evening, more or less. He had plenty of wounds, at his
back, on his foot and knee, left quadrant abdomen, and left hand. The
respondent was even aided by her aunt, Mely Alvarico when the latter held
the left arm of the movant so that the latter would be stabbed in his left
quadrant abdomen. Respondent even shouted that she would kill the movant;
thus, all the elements for frustrated murder were present.

With all due respect to the Public Prosecutor, the matter should have

been brought to trial because of the surrounding circumstances. To dismiss

the case and to declare that the respondent could not be indicted for other

related cases of physical injuries because the act of the respondent is an act of

self-defence is definitely out of context because such function is given to

courts where evidence will be adduced by both parties.

In the case of Secretary Leila De Lima, et. Al., vs. Mario Joel T. Reyes,
G.R. No. 209330, January 11, 2016, the Supreme Court has the occasion to
rule that—

In a preliminary investigation, the prosecutor does not

determine the guilt or innocence of an accused. The
prosecutor only determines "whether there is sufficient
ground to engender a well-founded belief that a crime has
been committed and the respondent is probably guilty
thereof, and should be held for trial. As such, the prosecutor
does not perform quasi-judicial functions.

The prosecutor in a preliminary investigation does not

determine the guilt or innocence of the accused. He does not
exercise adjudication nor rule-making functions.
Preliminary investigation is merely inquisitorial, and is
often the only means of discovering the persons who may be
reasonably charged with a crime and to enable the fiscal to
prepare his complaint or information. It is not a trial of the
case on the merits and has no purpose except that of
determining whether a crime has been committed and
whether there is probable cause to believe that the accused
 is guilty thereof. While the fiscal makes that determination,
he cannot be said to be acting as a quasi-court, for it is the
courts, ultimately, that pass judgment on the accused, not
the fiscal.

Thus, movant prays for justice and resolution in his favor.

WHEREFORE, premises considered, it is most respectfully prayed of this

Honorable Office that the Resolution dated May 10, 2021 be RECONSIDERED,
SET ASIDE AND REVERSED and a NEW resolution be issued in favor of the
movant.

Other just and equitable relief is also prayed for by the movant.

Cebu City, Philippines. May 19, 2021.

RODULFO D. DACALOS, JR.

Counsel for the Movant
Roll No. 53243
Municipal Hall of Tuburan
Tuburan, Cebu
Mobile No. 0917.776.0848
E-mail Address: rdacalosjr@gmail.com
PTR No. 400935, Jan. 10, 2021, Cebu City
IBP OR No. 22134, Jan. 10, 2021, Cebu City Chapter
MCLE Compliance No. VI-0023574 (Aug. 22, 2019)

NOTICE

The Receiving Clerk

City Prosecutor’s Office
Cebu City

Vellieflor L. Madden

PNP-Station 10
Katipunan Street, Labangon, Cebu

Greetings!
 Please submit the foregoing motion for the consideration and approval
of the Honorable Prosecutor immediately upon receipt hereof sans arguments
and appearance of counsels.

Rddacalos, jr.

Copy furnished:

Vellieflor L. Madden
Respondent
Gate No. 3, San Carlos Heights Subdivision
Quiot Pardo, Cebu City

Police Major Janelito Marquez

PNP Station 10
Katipunan Street, Labangon
Cebu City

Copies of the foregoing have been served through registered mail due to
lack of persons to effect personal service.

86877349 Rddacalos, jr.