Commonwealth v. Montalvo, 749 CAP

205 A.3d 274

COMMONWEALTH of Pennsylvania, Appellant

v.Milton Noel MONTALVO, Appellee

Commonwealth of Pennsylvania, Appellee

v.Milton Noel Montalvo, Appellant

No. 749 CAP

No. 750 CAP

Supreme Court of Pennsylvania.

Submitted: October 3, 2018

Decided: March 26, 2019

Shawn Nolan, Federal Community Defender Office, Eastern District of PA, Maura McNally, Federal Public Defender's Office, Fed. Comm. Defender Cap Habeas, Philadelphia, PA, for Appellant.

Jennifer Anne Peterson, Office of Attorney General, Harrisburg, PA, Ronald Eisenberg, Pennsylvania Attorney General's Office, Philadelphia, PA for Appellee.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

JUSTICE BAER

In this capital murder case arising under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541 - 9546, both the Commonwealth and Milton Noel Montalvo have filed cross-appeals from the order of the Court of Common Pleas of York County ("PCRA Court"), which denied relief on Montalvo's guilt phase claims, but granted him a new penalty hearing based on two separate claims of ineffective assistance of counsel. For the following reasons, we affirm the PCRA court's order.¹

I. Factual and Procedural Background

While a factual recitation was set forth in the Court's decision on direct appeal, Commonwealth v. Montalvo , 604 Pa. 386, 986 A.2d 84 (2009), we reiterate those facts relevant to the instant PCRA matter. In April of 1998, Appellant² was in a grocery store when he had a telephone conversation with his wife, Miriam Ascensio. At the time, the couple had recently separated. After the call, Esther Soto, the owner of the grocery store, heard Appellant tell his brother, Noel Montalvo, that he would kill his wife. Later that night, witnesses observed Ascensio and her coworker, Nelson Lugo (a/k/a Manuel Rodriguez Santana), together at a local bar. Hours later, two neighbors from the apartment directly below Ascensio's apartment heard Appellant shouting outside, demanding entry into Ascensio's residence. The neighbors then heard a window break and Ascensio say, "Call the police." Two other neighbors heard some disturbance occurring on Ascensio's porch, and one neighbor saw a Hispanic male banging on her door. The neighbors explained that they heard people arguing and loud banging noises coming from the apartment throughout the night, albeit no one summoned the authorities.

The following morning, one neighbor observed broken glass on Ascensio's porch, knocked on the door, and received no response. After looking into the window and observing a male lying on the floor, the neighbor instructed his wife to call the police. Upon their arrival, the police discovered the bodies of Ascensio and Lugo inside the residence. Ascensio's neck was slashed several times, her skull fractured by a blunt object, and her eye punctured. Ascensio's body was naked from the waist down with a high-heeled shoe in her genital area and panties on her face. Lugo's body had a fatal stab wound to the chest, and a tube of lipstick was protruding from his teeth. Crime scene investigators collected a blood sample on a window blind hanging inside the broken pane of glass in Ascensio's porch door and another blood sample on a cloth bag found on a sofa bed. Both samples were later determined to be Appellant's blood.

Esther Soto thereafter gave a tape-recorded statement to police, relaying what she heard at the grocery store. She further indicated that Appellant and his brother appeared at her home the morning after the murders and that Appellant stated, "We killed my wife." Soto also told police that the men explained that Appellant killed Lugo and his brother killed Ascensio, and that they intended to flee to Florida or the Dominican Republic. More than eight months later, in January of 1999, police apprehended Appellant in Florida.³ In a recorded statement to police, Appellant denied any involvement in the murders.

The Commonwealth subsequently charged Appellant with two counts of murder, and trial commenced in January of 2000. The prosecution's trial theory was that Appellant and his brother, who was still at large at the time, committed the murders of Ascensio and Lugo. The Commonwealth presented the testimony of Ascensio's neighbors to establish Appellant's presence at the crime scene. It further presented forensic evidence establishing that Appellant's blood was found on the window blind and on a fabric bag in Ascensio's apartment. The Commonwealth additionally presented the testimony of Soto, who stated that she remembered Appellant coming into her store on the day of the murder, but recanted her earlier statement that she heard Appellant say that he would kill his wife. Soto further testified that while Appellant and Noel came to her home on the day after the murders, they did not confess to the killings. Soto explained that she had lied to Detective Roland Camacho when she told him that Appellant and Noel had confessed because the detective had threatened to send her to jail, close down her business, and take away her children if she did not implicate Appellant in the murders.

Detective Camacho also testified at Appellant's trial, disputing Soto's claim in this regard. The Commonwealth thereafter entered into evidence Soto's tape-recorded statement to police, indicating that Appellant had told her prior to the murders that he planned to kill his wife, and confessed that he and Noel had done so after the murders had been committed. Additionally, germane to an issue herein, the Commonwealth presented the testimony of Detective Michael Hose of the York City Police Department who stated that when he arrived at the crime scene, he observed "a high-heel shoe jammed up into [Ascensio's] crotch area that protruded through her legs that was visible." N.T., 1/14/2000, at 756.

The defense's trial theory was that Appellant was not involved in the murders and that his brother had committed the offenses. In support of this theory, Appellant presented character witnesses attesting to his law-abiding reputation and argued to the jury that the Commonwealth did not establish his participation in the killings beyond a reasonable doubt. During his closing argument, the prosecutor referenced the placement of the high-heeled shoe in Ascensio's genital area, stating, "Then someone, still out of anger, took a shoe and violated Miriam Ascensio again; and that someone was Defendant." N.T., 1/19/2000, at 1206.

Following trial, the jury convicted Appellant of two counts of first degree murder. Before the penalty hearing commenced, Appellant's trial counsel petitioned the trial court for the appointment of a mental health expert, but the trial court denied the request. Nevertheless, Dr. Allan Tepper, J.D., Ph.D, met with Appellant for more than three hours on January 16, 2000, during the guilt phase of trial, to conduct a screening evaluation for major mental illness, but not a comprehensive evaluation for mitigation evidence. Appellant told Dr. Tepper that he was not involved in the killings. Following the evaluation, Dr. Tepper concluded that Appellant did not display any signs of major mental illness and possessed intellectual functioning in the average range. Accordingly, Dr. Tepper did not recommend further neuropsychological testing.

During the penalty hearing, relating to Ascensio's murder, the Commonwealth presented, inter alia , evidence in support of three aggravating circumstances: commission of the killing during the perpetration of a felony, 42 Pa.C.S. § 9711(d)(6), commission of multiple murders, id. , § 9711(d)(11), and commission of the killing by means of torture, id., § 9711(d)(8). The defense presented, inter alia , evidence supporting the mitigating circumstances that Appellant had no significant history of prior criminal convictions, id. , § 9711(e)(1), and other evidence of mitigation, id. , § 9711(e)(8), including Appellant's prison record, education, ability to be productive, and positive character evidence.

Germane to an issue on appeal, during the penalty proceeding the prosecutor repeatedly stated to the jury that its role was to "recommend" a sentence of death. The trial court subsequently reaffirmed this notion when responding to an objection, stating to the jury, "I am the sentencing person. Your decision is a recommendation to the court." N.T., 1/21/2000, at 136. Trial counsel did not object to these comments.

Ultimately, the jury found all of the aforementioned aggravating and mitigating factors relating to Appellant's conviction for the murder of Ascensio. The jury further found the identical aggravating and mitigating factors relating to the conviction for Lugo's murder, with the exception of the torture aggravator. Finding that the aggravating factors outweighed the mitigating circumstances, the jury returned two verdicts of death for the murders of Ascensio and Lugo.

Represented by new counsel, Appellant filed a direct appeal in this Court, raising thirty-seven issues for review, twenty of which challenged trial counsel's effectiveness.⁴ This Court affirmed Appellant's judgment of sentence of death on December 28, 2009. Montalvo , supra . The United States Supreme Court denied Appellant's petition for a writ of certiorari on October 4, 2010. Montalvo v. Pennsylvania , 562 U.S. 857, 131 S.Ct. 127, 178 L.Ed.2d 77 (2010).

On August 30, 2011, Appellant timely filed a pro se motion for post-conviction relief. The PCRA court denied relief on September 26, 2011, mistakenly believing that Appellant had already received PCRA review because he had litigated ineffectiveness claims on direct appeal. Appellant subsequently filed a notice of appeal to this Court. By per curiam order dated April 5, 2012, this Court granted the parties' joint motion to relinquish jurisdiction and remanded the matter to the PCRA court with "directions to permit [A]ppellant to file a first, of-right, counseled petition pursuant to the [PCRA]." Commonwealth v. Montalvo , No. 639 CAP (filed Apr. 5, 2012).

On ...