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Commonwealth v. Montalvo

December 28, 2009


Appeal from the Order of the Court of Common Pleas of York County, Criminal Division, at No. 3183 CA 1998, dated June 28, 2006.

The opinion of the court was delivered by: Madame Justice Greenspan


SUBMITTED: December 2, 2008


This is a direct appeal from the imposition of a sentence of death by the Court of Common Pleas of York County, in which Appellant Milton Montalvo raises thirty-seven (37) issues for our review. We affirm.


The record shows that in April of 1998, Appellant, who had recently separated from his wife, Miriam Ascensio, had a telephone conversation with her while he was in a local grocery store. Esther Soto, the owner of that store, was present and later told police in a recorded statement that, after the call, Appellant told his brother, Noel Montalvo, that he would kill his wife. Later that evening, Ascensio and her co-worker, Nelson Lugo (a.k.a. Manuel Santana) were seen together at a local bar. Hours later, two of Ascensio's neighbors heard Appellant outside Ascensio's apartment demanding entry into the premises. Additionally, those witnesses testified that they heard a window break, and heard Ascensio asking for the police to be called. Two other neighbors testified to hearing a disturbance on the porch of Ascensio's apartment. One neighbor saw a Hispanic man banging on Ascensio's door. Witnesses testified that, following the sound of breaking glass, they heard loud noises emanating from the apartment throughout the night.

The next morning, another neighbor noticed broken glass on the back porch near Ascensio's apartment. That neighbor knocked on the door to check on Ascensio, and when he received no response, he pushed a curtain aside and looked inside the apartment. He noticed a male lying on the floor and instructed his wife to call the police. The police found the bodies of Ascensio and Lugo inside the apartment. Ascensio's neck was slashed multiple times and her skull was fractured in multiple places, consistent with multiple blows from a blunt object. Ascensio's neck also had several superficial cuts, and one of her eyes was punctured. Her body was found naked from the waist down, and a high-heeled shoe was placed at her crotch. Lugo had died as a result of a stab wound to the chest. Crime scene investigators collected two blood samples at Ascensio's apartment that matched Appellant: one on a blind hanging inside a broken pane of glass above the doorknob and another on a cloth bag found on a sofa bed.

Esther Soto told police that Appellant and Noel Montalvo arrived at her home on the morning after the murder. Appellant stated: "[W]e killed my wife." Appellant and Noel Montalvo explained that Appellant killed Lugo and Noel Montalvo killed Ascensio. They asked Soto's husband if they could stay, but were refused. They left forty-five (45) minutes after arriving, stating that they intended to go to Florida or the Dominican Republic. Appellant was apprehended in Miami, Florida in January of 1999.*fn1

The Commonwealth charged Appellant with two counts of murder. In January of 2000, Appellant was tried before the Honorable Sheryl A. Dorney and a jury. In addition to the aforementioned blood samples, the Commonwealth presented the testimony of several witnesses to establish Appellant's presence at the crime scene at the time of the murders. The Commonwealth further entered into evidence Esther Soto's tape-recorded statement to police detailing her observations and Appellant's statements that he planned to kill his wife and his admission that he and his brother had done so. On the witness stand, Soto recanted her earlier statement to police, claiming that police threatened to close her business and imprison her if she did not implicate Appellant in the murders. She testified that Appellant never stated in her presence that he would kill his wife, and that Appellant never admitted in her presence to killing Ascensio and Lugo. The Appellant's case-in-chief consisted of calling two character witnesses, who testified to Appellant's law-abiding reputation, and recalling Commonwealth witness Detective Michael Hose for further cross-examination.*fn2 The Commonwealth argued to the jury that Appellant, together with his brother, committed two brutal, premeditated, and deliberate killings. The defense argued that the Commonwealth did not establish beyond a reasonable doubt Appellant's participation in the killings, and that the evidence at best demonstrated that Appellant was present at Ascensio's apartment at some point that evening. After deliberations, the jury found Appellant guilty of both counts of first-degree murder. On January 21, 2000, the jury returned a verdict of death on both murders. The jury found three aggravating circumstances in the murder of Ascensio, and two aggravating circumstances in the murder of Lugo,*fn3 and determined that these aggravators outweighed the two mitigating circumstances found in each murder.*fn4

On February 25, 2000, Appellant, represented by new counsel, filed a notice of appeal with this Court. In April of 2000, pursuant to Pa.R.A.P. 1925(b), Appellant filed a statement of matters complained of on appeal, which included sixteen (16) claims of ineffective assistance of trial counsel. On July 23, 2001, the trial court issued its opinion.

On November 14, 2001, Appellant filed a motion in this Court to remand his case to the trial court for an evidentiary hearing. This Court granted that motion on January 29, 2002.*fn5

Thereafter, Appellant, yet again represented by new appellate counsel, filed several supplemental motions, including a motion for a new trial and penalty hearing, and an amended motion based on ineffective assistance of counsel. On January 22 and 23, 2004, Judge Dorney conducted an evidentiary hearing on ineffectiveness of trial counsel. On August 16, 2004, Appellant filed a motion for a new trial based on after-discovered evidence. On October 5, 2005, and November 9, 2005, Judge Dorney conducted an additional evidentiary hearing regarding that motion. On June 28, 2006, Judge Dorney issued an opinion and order denying all thirty-seven (37) claims raised by Appellant. Appellant thereafter appealed to this Court. We address, respectively, Appellant's seventeen (17) claims on direct appeal in addition to his twenty (20) claims of ineffective assistance of counsel.


I. Sufficiency of the Evidence

Appellant does not raise a specific claim that the evidence at trial was insufficient to support his conviction. In cases where a death sentence has been imposed, however, this Court conducts an independent review of the record to determine whether the evidence adduced at trial was sufficient to sustain a first-degree murder conviction. Commonwealth v. Ramos, 827 A.2d 1195, 1196 (Pa. 2003). As we have previously stated:

To obtain a first-degree murder conviction, the Commonwealth must demonstrate that a human being was unlawfully killed, the defendant perpetrated the killing, and the defendant acted with malice and a specific intent to kill. When reviewing whether the evidence was sufficient to support a jury's findings to this effect, this Court determines whether the evidence, viewed in the light most favorable to the Commonwealth as verdict winner, is sufficient to enable a reasonable jury to find every element of the crime beyond a reasonable doubt. In applying this standard, we bear in mind that the Commonwealth may sustain its burden by means of wholly circumstantial evidence; that the entire trial record should be evaluated and all evidence received considered, whether or not the trial court's rulings thereon were correct; and that the trier of fact, while passing upon the credibility of witnesses and the weight of the proof, is free to believe all, part, or none of the evidence.

Commonwealth v. Kennedy, 959 A.2d 916, 920 (Pa. 2008) (internal citations omitted).

As described above, the evidence demonstrated that shortly before the murders Appellant stated his intent to kill his wife. Appellant was then seen demanding entry into Ascensio's apartment the night of the murder. Two blood samples confirm Appellant's presence in the apartment. Appellant also admitted responsibility for the murders the next morning in the presence of Esther Soto. Taking these facts along with other pieces of evidence into account, we conclude that the record at trial was more than sufficient for the jury to conclude, beyond a reasonable doubt, that Appellant was guilty of two premeditated and deliberate killings.

II. Voir Dire

Appellant argues that the trial court erred in permitting a voir dire question requested by the Commonwealth regarding circumstantial evidence. According to Appellant, the trial court "effectively permit[ted] the Commonwealth to test the waters of how a juror would react to [the] evidence." Appellant's Brief at 9.

During voir dire, the trial court stated in pertinent part:

There are two types of evidence in a case. There is direct evidence and there is what we call circumstantial evidence.

Direct evidence is what we all saw at noon and that was it was raining. You saw it rain. At least I hope you saw it rain. But it was raining at noon.

Circumstantial evidence would be if you were in a room and [sic] didn't have any windows today and you walk out at the end of the day at 4:30, or whatever time before that we adjourn for the night, and you see people carrying umbrellas, you see people wearing raincoats, streets are wet, there is [sic] puddles along the gutter, along the sidewalk, cars have droplets of water on it, but it's not actually raining, that is all circumstantial evidence, facts that lead to the conclusion that it had rained.

It was not direct evidence. You did not see it rain, but there are all of these other facts that lead you to the conclusion that it rained when I was in that courthouse today. Okay.

Does anyone have any reservations or doubts about accepting the fact that a Defendant's guilt can be established solely by circumstantial evidence? And I will instruct you that the guilt of a Defendant may be established by circumstantial evidence alone but only if certain factors are met by the Commonwealth. Does anybody have a problem following the Court's instruction concerning circumstantial evidence?

N.T., 01/10/2000, 109.

"The purpose of voir dire is to ensure the empanelling of a fair and impartial jury capable of following the instructions of the trial court." Commonwealth v. Chmiel, 889 A.2d 501, 520 (Pa. 2005) (quoting Commonwealth v. Harvey Miguel Robinson, 864 A.2d 460, 484 (Pa. 2004)). This Court has consistently held that the "scope of the voir dire rests in the sound discretion of the trial judge, whose decision will not be reversed unless palpable error is established." Id. We find no merit in Appellant's claim. The trial court's question here simply asked if the jurors were capable of following that court's instructions. We conclude that the trial court did not abuse its discretion in asking the jury this question.

III. Opening Statements

Appellant argues that the trial court committed error when it overruled his objection to the Commonwealth's opening statement that Ascensio was "butchered." Appellant contends that the Commonwealth's statement was intended to "arouse passion against [Appellant] and sympathy for Ascensio." Appellant's Brief at 10.

This Court considered the propriety of a prosecutor's opening remarks in Commonwealth v. Antyane Robinson, 877 A.2d 433 (Pa. 2005), where this Court stated:

A prosecutor's remarks are fair if they are supported by evidence or contain inferences reasonably derived from that evidence. Commonwealth v. [Darryl John] Carter, 643 A.2d 61, 75 (Pa. 1994). "Prosecutorial misconduct does not occur unless the unavoidable effect of the comments at issue was to prejudice the jurors by forming in their minds a fixed bias and hostility toward the defendant, thus impeding their ability to weigh the evidence objectively and render a true verdict." Commonwealth v. Paddy, 800 A.2d 294, 316 (Pa. 2002) (citing Commonwealth v. Rizzuto, 777 A.2d 1069 (Pa. 2001)). Due to the nature of a criminal trial, both sides must be allowed reasonable latitude in presenting their cases to the jury. A prosecutor's comments must be reviewed in the context in which they were made. Commonwealth v. Smith, 416 A.2d 986, 989 (Pa. 1980).

Id. at 441 (parallel citations omitted). In this case, the trial court instructed the jury that counsel's remarks were not evidence, and that Appellant was presumed innocent. We conclude that the Commonwealth's use of a single word, which was subsequently substantiated by ample evidence at trial,*fn6 did not prejudice Appellant such that the jury could not fairly reach a verdict.

IV. Admission of Evidence

Appellant raises eight (8) issues challenging the trial court's admission or exclusion of evidence. These claims encompass evidentiary rulings made during both the guilt and penalty phases of trial. We address the guilt phase claims first, before turning to the penalty phase claims.

Our standard of review for considering whether a ruling on the admissibility of evidence was proper is well settled:

Admission of evidence is a matter within the sound discretion of the trial court, and will not be reversed absent a showing that the trial court clearly abused its discretion. Commonwealth v. Chmiel, 738 A.2d 406, 414 (Pa. 1999). Not merely an error in judgment, an abuse of discretion occurs when "the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by the evidence on record." Commonwealth v. McAleer, 748 A.2d 670 (Pa. 2000).

Commonwealth v. Cooper, 941 A.2d 655, 668 (Pa. 2007) (parallel citations omitted).

First, Appellant argues that the trial court erred when it denied his motion in limine to exclude a knife and axe found in Appellant's van subsequent to Appellant's arrest. Appellant argues that, under Pa.R.E. 403, the probative value of these items was outweighed by their prejudicial effect. Appellant emphasizes that the knife was not unusual, that the axe was in fact being used to support the driver's seat, and that no blood was found on either item. The trial court denied Appellant's motion in limine after the Commonwealth proffered that its pathologist, Dr. Sarah L. Funke, would testify that the knife and axe were consistent with the type of implements that caused Ascensio's injuries. See N.T., 01/10/2000, at 24-25.

In Commonwealth v. Williams, 640 A.2d 1251 (Pa. 1994), this Court held:

A weapon shown to have been in a defendant's possession may properly be admitted into evidence, even though it cannot positively be identified as the weapon used in the commission of a particular crime, if it tends to prove that the defendant had a weapon similar to the one used in the perpetration of the crime. Any uncertainty that the weapon is the actual weapon used in the crime goes to the weight of such evidence.

Id. at 1260 (citing Commonwealth v. Coccioletti, 425 A.2d 387 (Pa. 1981)). A straightforward application of the rule in Williams reveals the inherent probative value of the items admitted into evidence. Therefore, the trial court did not abuse its discretion in denying Appellant's motion in limine.*fn7

Second, Appellant contends that the trial court erred in permitting the Commonwealth's expert on serology and trace evidence, Chris Anne Arrotti, to testify "about why there would be no seminal fluid concerning Ascensio." Appellant's Brief at 11. Before this Court, Appellant basically asserts Arrotti's testimony was more prejudicial than probative, as it "allowed the jury to speculate that the victim may have been raped." Id.

At trial, Arrotti testified that swabs taken from Ascensio's body showed no evidence of semen. N.T. 01/18/2000, 1014-15. When the Commonwealth followed up by asking what could account for the absence of seminal fluid, Appellant's trial counsel objected on the basis that "[a]ccounting for a negative . . . is not possible." Id. at 1015. The trial court overruled that objection. Arrotti went on to explain that the absence of such material could indicate "no sexual activity, no penetration, no ejaculation, or use of a condom." Id.

Appellant's contention that this testimony is improper is not supported by our prior decisions. This Court has held that an expert may respond to a hypothetical with an opinion so long as the operative set of facts is eventually supported by competent evidence. Commonwealth v. Rollins, 738 A.2d 435, 446 (Pa. 1999) (citing Commonwealth v. LaCava, 666 A.2d 221, 236 (Pa. 1995)). In the case sub judice, testimony established that Ascensio's body was found naked from the waist down, and that a high-heeled shoe was placed at her crotch. Further, Soto's tape-recorded statement indicated that Noel Montalvo admitted to having sexual relations with Ascensio. We also note that Arrotti in fact expressed no singular opinion as to what occurred. Rather, the witness simply explained four possible scenarios that could account for the lack of semen evidence. Consequently, we conclude that the trial court properly admitted Arrotti's testimony.

Third, Appellant argues that the trial court erred in overruling his objection to Detective Roland Camacho's testimony that Esther Soto "had intimate knowledge of the case and . . . knew things the newspapers did not know." Appellant's Brief at 11. Appellant bases his claim on the theory that Detective Camacho's statement improperly bolstered Soto's tape-recorded statement, which was subsequently played for the jury.

Improper bolstering of a witness's testimony occurs when the prosecutor assures the jury that a witness is credible when such assurance is based on information not contained in the record. Commonwealth v. Cousar, 928 A.2d 1025, 1041 (Pa. 2007). This Court has repeatedly held, however, that statements explaining a police officer's conduct during the course of an investigation are admissible. See, e.g., Chmiel, supra, 889 A.2d at 532-34. When exercising discretion over the admission of such statements, the trial court is required to balance the Commonwealth's need for the statements ...

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