 Noel Montalvo (Photo: Death Penalty Information Center)
Rice’s neighbor was 44-year-old Miriam Ascensio. Rice told the police that he had been awoken by the sound of breaking glass just before midnight and then heard Ascensio’s estranged husband, 35-year-old Milton Montalvo, yelling to open the door. Later, Rice said, he heard other noises from the apartment.
Inside the apartment, police found the bodies of Ascensio in the bedroom and 37-year-old Nelson Lugo in the kitchen.
According to an autopsy, Lugo had been stabbed in the chest. He had defense wounds on his hands; his fingers were nearly cut off. He also had a tube of lipstick in his mouth. Ascensio had been stabbed in the eye, and her head was nearly cut off. Her nose had been broken and she was naked from the waist down, with her underwear around her face. Ascensio’s autopsy said she died from blunt force trauma to her head and body.
The police could not locate Milton Montalvo or his brother, 33-year-old Noel Montalvo, who had been seen with Milton a few hours after the murder. The police issued an arrest warrant for Milton Montalvo on April 21, believing he had fled York County with the help of his brother. Eight months later, on December 23, an arrest warrant was issued for Noel Montalvo.
The police arrested Milton Montalvo in Miami, Florida, on February 4, 1999, after he was picked up in a prostitution sting conducted during Super Bowl weekend. He was convicted of first-degree and second-degree murder on January 20, 2000, and sentenced to death on February 14, 2000. At Milton’s trial, the state argued that he alone was responsible for the murders and there was no credible evidence that Noel was involved.
Federal agents arrested Noel Montalvo on August 6, 2002, in Guttenberg, New Jersey, a small city just across the Hudson River from New York City.
Noel Montalvo’s trial in the York County Court of Common Pleas began on March 10, 2003. He was represented by Francis Cutruzzula, an attorney from New Jersey who had met Montalvo at the courthouse in Hudson County, New Jersey, after his arrest in Guttenberg.
The prosecutor said in his opening statement that Noel Montalvo had helped kill Lugo and Ascensio because he was “angry with [her] because the ties with Milton was broken down.” He also said that Ascensio knew that Noel was living in the mainland United States under an alias, after fleeing Puerto Rico to avoid a prison sentence for auto theft.
In addition, the prosecutor said that the different injuries received by Lugo and Ascensio suggested two assailants and that Ascensio’s death was caused by blunt-force injuries.
Chris Ann Arrotti, a forensic analyst with the Pennsylvania State Police, testified that testing was performed on more than 70 items found at the crime scene. Seventeen of those items contained traces of blood. Milton Montalvo’s blood was found on at least three items. In addition, she testified that a hair found on Nelson’s hand was "determined to belong" to Milton Montalvo. Arrotti testified that Noel Montalvo was not linked to any of this evidence.
Dr. Sarah Funke, a pathologist, testified about Ascensio’s injuries and said she had received both blunt- and sharp-force injuries, including sharp-force injuries to her neck. Funke did not offer an opinion about whether the different injuries indicated two assailants were involved.
Rice testified that he heard two male voices in Ascensio’s apartment. He said he recognized one of the voices as Milton’s. The other he didn’t recognize. A downstairs neighbor, Fidelio Morrell, said he only heard one male voice, Milton’s, in the apartment. He testified that he heard a woman say, “Call the police.” Morrell said he didn’t; Milton Montalvo and his estranged wife fought most weekends, and Morrell went back to sleep.
Patricia Ascensio, Miriam’s niece, testified that she was with Noel Montalvo at his house earlier on the evening of April 18, and he was in good spirits, not a man ready to commit a violent crime. Patricia testified that Montalvo left the house about 11 p.m. This undercut Noel’s alibi and also contradicted the testimony of a police officer who said that Patricia had initially told her that Noel was at the house until 2 a.m. on April 19.
On the night in question, Patricia had been with Angel Santos, her boyfriend. He could not be located at trial, and the state and defense agreed to allow his statement to Detective Lisa Daniels to be read to the jury.
In the statement, Angel said that he was at Noel’s apartment with Patricia, Noel, and Noel’s wife just after midnight on the morning of April 19. At some time after 12:30 a.m., Milton showed up, “upset,” “agitated,” and “sweating profusely.”
Santos also said that Milton asked him and his brother for $20 and left by himself a short while later.
A man named Nici Negron, who ran a towing business, said that Milton called him around midnight on April 18 and asked to meet him. Negron said that when he arrived at the agreed-upon location, he saw the Montalvo brothers and a woman inside Milton’s van.
The state’s primary witness was Esther Soto, who ran a small grocery store with her husband, Miguel.
She testified that on the afternoon of April 18, Milton came to the store and used a telephone to call his estranged wife. They argued about a financial matter, and Soto said she heard Milton shout into the phone. During this argument, she said, Noel entered the store. After the call ended, Soto testified, she heard Noel tell Milton to “leave it to him,” and that he would kill Ascensio himself.
Soto also testified that the Montalvo brothers came to her house after the murders. She said she heard Noel say that he stabbed Ascensio in the eye and cut her throat.
Soto’s testimony contradicted court statements she made in Milton Montalvo’s case. At Milton’s preliminary hearing, Soto testified that Milton, not Noel, admitted to the murders. Later, at Milton’s trial, Soto testified she couldn’t recall any statements either man made, leading the prosecutor to call her a “liar.” At Noel’s trial, Soto testified that she lied at Milton’s trial out of fear, because Noel was still at-large.
During cross-examination, Soto said that claiming not to remember something was different than lying. She testified that Detective Roland Comacho, a York police officer who spoke Spanish, forced her to change her testimony. “Detective Comacho made me because my store would be closed, I would go to jail. I would have to put my children [up] … I had to because he forced me,” Soto said.
Another officer testified that he never saw Comacho threaten Soto, but this officer did not speak Spanish.
Miguel Soto’s testimony was at odds with his wife’s. Testifying for the defense, he said that he had also been in the store that same afternoon and didn’t hear Noel make any threats against Ascensio. Soto said that Milton and Noel Montalvo came to his house in the early morning of April 19. “Milton told me—I don’t want to say this—that he had killed his wife,’’ Miguel Soto said. He said Milton said he had problems with the police, and that “he had to leave and he wanted to know if he could leave his brother—and that’s when I found out [Appellant] was his brother—[at] my house.’’
Miguel Soto testified that he discussed the matter with Esther and then told Montalvo that they needed to leave. Miguel said that his wife was upstairs when Milton confessed to the killing.
Miguel Soto said his wife convinced him not to go to the police. They became involved months later, in December 1998; an officer had mistakenly entered the license plate on Soto’s van as Milton’s, and the plate got snagged when Soto went to renew his registration.
Over the objection of his attorney, Montalvo sought to testify in his own defense. Judge Sheryl Ann Dorney allowed a short recess for Montalvo to discuss matters with his mother and wife. He returned to the courtroom and said he would not testify. “Every child listens to his mother all the time,” he said.
During his closing argument, Cutruzzula said the forensic evidence pointed to Milton Montalvo acting alone as the killer. Nothing connected Noel to the crime scene. “Not a trace of blood, not a piece of hair, not a fiber, no semen, nothing,” he said. Soto was a perjurer and liar, he said.
The prosecutor said the evidence pointed to two killers, based on the different types of fatal injuries received by Ascensio and Lugo. “Those two weapons are indicative there were two individuals,” the prosecutor said, adding that Ascensio was “not hit with anything sharp.” He also said that several witnesses saw the Montalvo brothers together in the hours after the murder, and that Noel Montalvo showed consciousness of guilt, because he quickly left York after the murders and tried to elude capture when he was arrested in New Jersey.
An all-white, non-Hispanic jury convicted Noel Montalvo on two counts of murder, burglary, and conspiracy on March 19, 2003. That same jury later sentenced Montalvo to death for Ascensio’s murder and life in prison for Lugo’s.
In his initial appeal, Montalvo claimed he had been convicted based on insufficient evidence; nothing tied him to the murders or a conspiracy to commit the murders. The Pennsylvania Supreme Court affirmed the conviction and the sentence on September 24, 2008. It wrote: “While no one testified that they saw or heard [Montalvo] at the crime scene, several witnesses testified that they saw [Noel] and [Milton] together both before and after the murders, raising an inference that they were together when Miriam was murdered.” In addition, the court said that Esther Soto’s testimony was sufficient to tie Noel Montalvo to the crimes.
Separately, the Pennsylvania Supreme Court’s Disciplinary Board recommended in 2006 that Cutruzzula’s law license be suspended for a year based on his misconduct during this first appeal, which was ultimately handled by another attorney.
In 2009, Montalvo’s attorneys petitioned for a new trial under Pennsylvania’s Post-Conviction Relief Act. A year later, they filed a petition for a writ of habeas corpus in U.S. District Court for the Middle District of Pennsylvania. Both petitions covered similar ground and claimed that Montalvo’s conviction was constitutionally flawed, the result of ineffective representation by Cutruzzula, judicial error, and prosecutorial misconduct, including misrepresenting the pathologist’s testimony and report.
It also said Hispanics and other minorities were unconstitutionally excluded from the jury pool. After the initial filing, the federal habeas petition was stayed while the state case proceeded.
Judge Dorney, the trial judge, held four days of evidentiary hearing, then dismissed the state petition on January 29, 2013. Montalvo moved to appeal, and Judge Dorney issued a bare-bones opinion on these appellate claims, often simply referring to her earlier ruling. After Judge Dorney retired in August 2013, the case was transferred to Judge Michael Bortner.
Judge Bortner denied Montalvo’s further claims in a one-page order on December 3, 2013, deferring to Judge Dorney’s order from January 29, 2013.
Montalvo appealed. On April 27, 2015, the Pennsylvania Supreme Court said that Judge Bortner’s ruling was deficient because it gave the appellate court “no basis to conduct meaningful appellate review.” It ordered additional hearings to resolve Montalvo’s claims of ineffective assistance of counsel, prosecutorial misconduct, and judicial error.
After these hearings, Judge Bortner ordered a new sentencing-phase trial and a new guilt-phase trial on February 11, 2019. He said that Cutruzzula had been ineffective in presenting mitigating factors that the jury could have used to recommend a sentence of life in prison rather than death. He also said that Cutruzzula had been ineffective when he failed to object to mistakes made by Judge Dorney during jury instructions.
Judge Dorney had first told the jurors: “So if the Commonwealth has not sustained [its] burden to that level, the burden of proving the Defendant guilty beyond a reasonable doubt, then your verdict must be guilty.” She omitted the word “not.”
Cutruzzula did not object to the misstatement.
Later, when Judge Dorney was going through the individual charges, she urged jurors to be organized in their work. “And as I said, if you find that the defendant was not involved in this, you should find him guilty of all those charges.” Again, she left out the word, “not,” but this time Cutruzzula caught the omission and said, “Not guilty, Judge.”
Judge Dorney responded: “Not guilty. Now that was a Freudian slip.”
Cutruzzula remained quiet.
The state appealed Judge Bortner’s order granting the new trial, but the Pennsylvania Supreme Court affirmed the ruling on July 8, 2020, writing that Judge Dorney’s gaffes and Cutruzzula’s failure to address these mistakes might have confused the jury.
“The trial judge’s use of the term ‘Freudian slip’ when attempting to correct her misstatement of the law actually undermined the correction, as it made light of her two prior misstatements of the law, and implied that the prior misstatements were not simply innocent slips of the tongue that the jury should disregard,” the court said.
Montalvo was transferred to a jail in York County to await retrial. Milton died in 2021, while awaiting resentencing after a judge ruled in 2017 that his initial sentence of death was based on the jury receiving incorrect information. At the time of his death, Milton had taken responsibility for the murders and said his brother was not involved.
On December 19, 2023, Noel Montalvo pled guilty to tampering with evidence by helping Milton leave York County after the murders. The other charges were dismissed, and he was released from prison.
In a statement, York County District Attorney David Sunday Jr. said: “My office reviewed all of the physical evidence and original forensic testing performed in this case. We determined that there were items from the crime scene where further DNA testing would be necessary to determine if any physical evidence existed linking Noel Montalvo to the murders of Miriam Ascensio and [Nelson Lugo]. This review of the physical evidence was exhaustive and numerous items were submitted for DNA evidence through state and private laboratories. We now have the results of these tests and none of the evidence at the crime scene possessed DNA belonging to Noel Montalvo.”
Those test results have not been made public.
Marshall Dayan, one of Montalvo’s former attorneys and the chairman of the board at Pennsylvanians for Alternatives to the Death Penalty, said: “That he was awarded a new trial and ultimately had homicide charges dismissed is no surprise. The shocking reality is that he was convicted in the first place when the Commonwealth had virtually no evidence against him. His original conviction evidences the arbitrariness, if not the discrimination, inherent in our criminal legal system, and in particular in our capital criminal legal system.”
– Ken Otterbourg
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