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Commonwealth v. Montalvo

Supreme Court of Pennsylvania

April 27, 2015


Submitted June 10, 2014.

Appeal from the order of 01/29/2013 (entered on 01/30/2013) in the Court of Common Pleas of York County, Criminal Division, dated January 29, 2013 at No. CP-67-CR-0000753-1999 Trial Court Judge: Sheryl Ann Dorney, Judge.

For Noel Matos Montalvo, APELLANT: Jeffrey Charles Marshall, Esq., Marshall & Smith, PC.

For Commonwealth of Pennsylvania, APPELLEE: James Patrick Barker, Esq., Office of Attorney General, Jennifer Anne Peterson, Esq., PA Office of Attorney General, Amy Zapp, Esq.

CASTILLE, CJ, SAYLOR, EAKIN, BAER, TODD, MCCAFFERY, STEVENS, JJ. MADAME JUSTICE TODD. Mr. Chief Justice Saylor, Messrs. Justice Eakin, Baer and Stevens join the opinion.


Page 402


This is a capital appeal from the order of the Court of Common Pleas of York County denying Appellant Noel Matos Montalvo's petition for relief under the Post Conviction Relief Act (" PCRA" ), 42 Pa.C.S.A. § § 9541-9546. For the reasons that follow, we are constrained to vacate the order and remand this matter to the PCRA court for further proceedings, as discussed below.

I. Factual and procedural background

Appellant is the brother of Milton Montalvo (" Milton" ). In 1995, Milton and his common law wife, Miriam Ascencio (" Miriam" ), moved from Puerto Rico to York County, Pennsylvania. The couple frequently fought, and, around March 1998, Milton moved out of the couple's apartment. On the evening of April 18, 1998, Miriam was seen at a local bar with a friend, Nelson Lugo a/k/a Manuel Santana (" Nelson" ). At some point during the evening, Miriam and Nelson left the bar and walked to Miriam's apartment. Later that evening, Vincent Rice, Miriam's next-door neighbor, was awakened sometime after 11:30 p.m.[1] by the sound of breaking glass on the common porch he shared with Miriam. Rice reported hearing Milton shout " open the door," after which he heard additional noises coming from the apartment. The following day, April 19, 1998, Rice looked through the window of Miriam's apartment and observed a man lying on the floor; at this point, he summoned the police.

When the police arrived at the scene, they observed that one pane of a four-pane window in the door to Miriam's apartment was broken; the broken pane was the closest to the door lock. Upon entering the apartment, the officers discovered Nelson's body in the kitchen and Miriam's body in the bedroom. Nelson had defensive wounds on his hands, his fingers were nearly severed, and he had a lipstick inserted in his mouth. Nelson's autopsy revealed that he died from a stab wound to

Page 403

the chest. Miriam had a broken nose, stab wounds to her eyes, and her head was nearly severed from her body. She was naked from the waist down, and her underwear was around her face. She was lying with her head on a pillow, and a high-heeled shoe was found under her buttocks. Miriam's autopsy revealed that she died from sharp force and blunt force injuries to her head and neck.

According to the trial testimony of Chris Ann Arrotti, a chemist employed with the Pennsylvania State Police, forensic testing was conducted on more than 70 items collected from the crime scene; approximately 17 of those items contained traces of human blood. Of the items that contained traces of human blood, two of the items contained traces of blood which did not belong to either victim: a white cloth bag found on a sofa bed near Miriam's body, and a kitchen window blind. The blood on both of those items was determined to belong to Milton Montalvo. Milton Montalvo's blood also was found on glass that remained in the broken window pane, and a hair collected from Nelson's hand was determined to belong to Milton Montalvo. There was no blood, hair, or fiber evidence that linked Appellant to the scene of the murders.

An arrest warrant was issued for Milton, and, in 1999, he was captured in Florida, and extradited to York County to stand trial for the murders of Miriam and Nelson. Ultimately, he was convicted of two counts of first-degree murder and one count of burglary, and, on February 14, 2000, he was sentenced to death. Approximately two months before Milton was arrested, Detective Roland Comacho, purportedly based on a statement given to him by Esther Soto, sought and obtained an arrest warrant for Appellant, charging him as a possible accomplice or participant in the murders. Appellant remained a fugitive until 2002, at which time he was discovered living under an assumed name, with an altered appearance, in Hudson County, New Jersey. Appellant was extradited to York County to stand trial, at which he was represented pro hac vice by Francis Cutruzzula, Esquire.[2] Frank Arcuri, Esquire served as local counsel.

In his opening statement at Appellant's trial, the prosecutor suggested that Appellant wanted to kill Miriam because he " was angry with Miriam because the ties with Milton had broken down," and because Miriam knew that Appellant " was living in this country under an alias having escaped from parole for automobile theft in Puerto Rico." N.T. Trial, 3/13/03, at 421. The Commonwealth further posited that the victims' different injuries demonstrated that two different weapons were used -- a knife and some other blunt object -- and, therefore, that there must have been two assailants.

In addition to the above-described testimony of Vincent Rice, Miriam's next-door neighbor, the Commonwealth presented at trial the testimony of Miriam's downstairs neighbor, Fedelio Morrell. Morrell testified that, on the night of the murders, sometime between 2:00 and 2:30 a.m., he saw Milton at Miriam's door, and heard him tell her to open the door. Morrell also heard Milton shout that he had seen someone

Page 404

go into Miriam's apartment. Morrell recounted that, approximately 20 minutes later, he heard a woman's voice say " call the police, call the police," id. at 603, and then he fell asleep. Morrell testified that, 20 minutes after he fell asleep, he heard " noise on the floor and on the walls and something being dragged." Id.

The Commonwealth also presented Nici Negron, who operated a towing business, as a witness. Negron testified that Milton called him at around midnight on April 18, 1998, and when he arrived approximately one-half hour later at the location Milton specified, he observed Milton, " a pregnant [woman], and Milton's brother" inside or nearby Milton's Dodge van. Id. at 505-06.

Patricia Ascensio, Miriam's niece, was also called as a witness by the Commonwealth. Patricia testified that she and her boyfriend, Angel Santos (" Angel" ), went to Appellant's apartment at approximately 9:00 p.m. on the evening of the murders so that Appellant's wife, who was known as " Ketty" or " Kathy," could do Patricia's hair. Patricia stated that she saw Milton at the apartment at approximately 9:30 p.m., but that Milton left at around 10:00 p.m. N.T. Trial, 3/13/03, at 483. Patricia testified that she and Angel left the apartment at approximately 11:00 p.m., and the only individuals present when they left were Appellant, Ketty, and Appellant's son. Id.

As the Commonwealth was unable to locate Angel Santos at the time of trial, the parties agreed to allow Angel's statements to Detective Lisa Daniels to be introduced through Detective Daniels' testimony. According to the police report prepared by Detective Daniels, Angel reported that he and Patricia were at Appellant's apartment with Appellant and Appellant's wife at approximately 12:30 a.m. on the morning of April 19, 1998; that Milton arrived sometime later and appeared " upset," " agitated," " hyped," and " sweating profusely" ; that Milton asked Appellant, and then Angel, for $20; that Milton left the apartment between approximately 1:15 and 1:30 a.m. on the morning of April 19; and that he and Patricia left the apartment at approximately 2:00 a.m. that same morning. City of York Police Dep't Supplement to Complaint Report, 4/19/98; N.T. Trial, 3/13/03, at 580-81.[3]

The only evidence presented by the Commonwealth to connect Appellant to the murders was the testimony of Esther Soto (" Esther" ). Esther testified that, on the afternoon of April 18, 1998, Milton visited the grocery store she operated with her husband at the time, Miguel Soto (" Miguel" ). Esther testified that Milton used the store's telephone to call Miriam about unemployment checks she had received in the mail, that an argument ensued, and that she heard Milton shouting at Miriam over the telephone. As Milton was shouting at Miriam, Appellant entered the store and approached Milton. According to Esther, after Milton ended his telephone call, she heard him tell Appellant that ...

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