New trial for 1 of 2 brothers convicted of York City double murder

Liz Evans Scolforo
York Dispatch
Noel Montalvo

One of two York City brothers convicted of murdering Miriam Asencio and her beau in 1998 has been granted a new trial in York County Court based on several trial errors.

Both Noel and Milton Montalvo were convicted of first-degree murder and related charges, and sentenced to death in separate trials.

On Feb. 11, York County Common Pleas Judge Michael E. Bortner ruled that Noel Montalvo, 54, deserves a new trial, primarily because his trial judge improperly directed a verdict of guilt when instructing jurors, and also because his defense attorney was ineffective.

Asencio was Milton Montalvo's ex-girlfriend, and prosecutors maintain he killed her and new boyfriend Manuel Santana because he was jealous and that his brother helped him. Santana went by the name Nelson Lugo.

Milton Montalvo's death sentence was overturned in June 2017 after a York County judge ruled he didn't receive a fair penalty-phase hearing during his 2000 trial and therefore deserves a new one. The new hearing has not yet been scheduled, and the 56-year-old's first-degree murder conviction still stands, although he continues to appeal.

At Noel Montalvo's 2003 trial, presiding Common Pleas Judge Sheryl Ann Dorney misspoke when instructing jurors, according to Bortner's 80-page order.

Forgotten word: Dorney clearly meant to tell jurors that if prosecutors hadn't sustained their burden of proving Noel Montalvo committed the murders beyond a reasonable doubt, they must find him not guilty, Bortner wrote.

However, she forgot the word "not" — meaning Dorney effectively told jurors to convict him even if they weren't convinced beyond a reasonable doubt.

"In defense of our late colleague, this was clearly a simple example of a (judge) misspeaking during the lengthy process of instructing a jury," Bortner wrote, adding her error was compounded by the fact that Noel Montalvo's defense attorney at the time didn't recognize the mistake and took no action.

"Any chance of a jury being misled regarding the burden (of proof) in a death penalty case is ... an extremely meritorious claim to be examined," Bortner wrote.

Bortner also granted Noel Montalvo a new trial based on the fact that his trial attorney, New Jersey-based Francis Cutruzzula, was ineffective in representing him. Cutruzzula was later disbarred for tax evasion.

Cutruzzula failed to prepare for a penalty-phase hearing, Bortner ruled. Also, there was a mere 45-minute break between Noel Montalvo's conviction and the start of his penalty-phase hearing to determine if he should receive life in prison or the death penalty, according to Bortner.

"Even barring this strict marshalling of the case, trial counsel admitted that he conducted no investigation into the background of the defendant in preparation for the penalty phase," Bortner wrote.

'Mental deficiencies': Bortner also noted that a psychological evaluation of the defendant in 2009, coupled with an investigation into his school records and family interviews, showed the defense could have argued Noel Montalvo "suffers from mental deficiencies that are, potentially, so severe as to mitigate any role he had in the murders."

Because of that, Bortner also ruled Noel Montalvo should receive a new penalty-phase hearing. But since the judge granted the defendant a new trial, the penalty-phase hearing would automatically be a new one as well.

Bortner said Noel Montalvo also is owed a new penalty-phase hearing because Cutruzzula and prosecutors erroneously told the jury that a death-penalty determination by them would be a "recommendation to the governor."

Defense attorney Jeff Marshall, who is Noel Montalvo's current attorney, said Bortner's ruling is "very good news." He said his client has always maintained his innocence.

Milton Montalvo

Marshall said he's practiced criminal law for 30 years and finds the case disturbing.

"There's limited evidence of his guilt," Marshall said, adding that Milton Montalvo, in his own appeals, now "acknowledges that he was the sole perpetrator." Milton Montalvo is arguing his trial attorney should have pursued a manslaughter defense and that the killings happened in the heat of passion.

The Pennsylvania Attorney General's Office is handling the Montalvo brothers' appeals on behalf of the York County District Attorney's Office.

"We will review the court's ruling and decision carefully before considering next steps," AG's office spokesman Joe Grace said Tuesday, March 12.

On Wednesday, Marshall said he had been notified that the AG's office filed an appeal Tuesday, challenging Bortner's determination that a new trial is deserved based on Dorney's error in instructing jurors.

The background: After the murders, the Montalvo brothers fled to Florida but were eventually captured. At their separate trials, they blamed each other for the killings.

York City Police said the Montalvos broke into Asencio's apartment at 233 E. Philadelphia St. and attacked her and Santana on April 19, 1998.

Asencio suffered multiple skull fractures. Her neck was slashed down to the spine, nearly decapitating her, and she was stabbed in the eye.

Her panties were pulled over her face and a high-heeled shoe was jammed into her crotch area, according to trial testimony.

Santana was killed by a single stab wound to the chest. A tube of lipstick had been jammed down his throat — forcefully enough that it cut the back of his throat, a forensic pathologist testified at trial.

— Reach Liz Evans Scolforo at or on Twitter at @LizScolforoYD.