Com. v. Montalvo

Decision Date28 December 2009
Docket NumberNo. 301 CAP.,301 CAP.
Citation986 A.2d 84
PartiesCOMMONWEALTH of Pennsylvania, Appellee v. Milton MONTALVO, Appellant.
CourtPennsylvania Supreme Court

Joanne Tyler-Floyd, for Milton Montalvo.

Christopher D. Carusone, PA Office of Attorney General, Philadelphia, Lori Ann Yost, York County District Attorney's Office, Thomas Kelley, York, and Amy Zapp, Harrisburg, for Commonwealth of Pennsylvania.

BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.

OPINION

Justice GREENSPAN.

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.

FACTS & PROCEDURAL HISTORY

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 1999.1

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.2 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,3 and determined that these aggravators outweighed the two mitigating circumstances found in each murder.4

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, 2002.5 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.

DISCUSSION
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, 573 Pa. 605, 827 A.2d 1195, 1196 (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, 598 Pa. 621, 959 A.2d 916, 920 (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...

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