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Pa. Supreme Court agrees with York judge that Noel Montalvo deserves new murder trial

Liz Evans Scolforo
York Dispatch
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Pennsylvania's highest court has agreed that one of two York City brothers convicted of murdering Miriam Asencio and her beau in 1998 deserves a new trial.

The state Supreme Court, in a Wednesday opinion, affirmed the February 2019 ruling of now-retired York County Common Pleas Judge Michael E. Bortner vacating Noel Montalvo's first-degree murder conviction and granting him a new trial.

His brother, Milton Montalvo, remains in prison on his first-degree murder conviction and related charges. Milton Montalvo's conviction stands, but his death sentence was overturned on appeal, and he is awaiting a new penalty-phase hearing to determine whether he should again be sentenced to death or spend the rest of his life in prison.

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.

Noel Montalvo also had been sentenced to death, but Bortner overturned that as well, even though granting him a new trial made moot the death sentence.

Prosecutors appealed Bortner's ruling granting the new trial but did not appeal his ruling tossing out the death sentence, according to the state Supreme Court's Wednesday filing.

Noel Montalvo

The state's high court agrees with Bortner's conclusion that Noel Montalvo deserves a new trial because of ineffectiveness of counsel, with regard to not correcting errors made by then-Judge Sheryl Ann Dorney, who is now deceased.

Dorney twice misspoke, telling jurors they must find Noel Montalvo guilty, rather than not guilty, if they weren't convinced of his guilt beyond a reasonable doubt.

Misstatements: 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 in his 80-page opinion.

"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 notice one of the mistakes 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.

The Supreme Court also noted that when Dorney corrected one of her misstatements, she told jurors it was a "Freudian slip," which implied that her two prior misstatements "were not simply innocent slips of the tongue that the jury should disregard," the Supreme Court noted, and "could only have compounded any misunderstanding that the jury may have had regarding the proper standard of proof."

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.

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

Noel Montalvo maintains his innocence, according to his appeals attorney, Jeff Marshall.

No physical evidence placed him at the crime scene, and the one prosecution witness who accused him at trial had given conflicting statements, according to the Supreme Court's opinion.

Milton Montalvo

Marshall confirmed that Milton Montalvo now says he acted alone, in the heat of passion, and is arguing the killings were manslaughter, not murder.

"He was the sole perpetrator (and indicated) Noel wasn't involved," Marshall said, adding the credibility of the prosecution's sole witness against Noel Montalvo was "very questionable."

"I truly believe he was not present at the scene," Marshall told The York Dispatch on Thursday.

Marshall said the state Attorney General's Office, which is handling the appeal on behalf of the York County District Attorney's Office, has the option of trying to appeal to the U.S. Supreme Court.

"That doesn't happen often, and I haven't received any indication yet whether they will or won't," he said.

Jacklin Rhoads, communications director for the Attorney General's Office, said the prosecution team in the appeals case is still reviewing the opinion.

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, a forensic pathologist testified at trial.

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