Missing word helps lead to new trial for man on death row in 1998 double-murder in York

A man who was sentenced to death for his role in a double-murder that happened in 1998 in York has been awarded a new trial because the judge misspoke when she instructed the jury about the legal principle of reasonable doubt. Common Pleas Judge Sheryl A. Dorney told the jury in the trial of Noel Montalvo that if prosecutors had not sustained their burden, “then your verdict must be guilty.” The judge left out the word “not” before “guilty.” He was later convicted of first- and second-degree murder, criminal conspiracy to commit criminal homicide and burglary.

In an 80-page opinion dated Feb. 11, Common Pleas Judge Michael E. Bortner wrote that statement from his late colleague was “clearly a simple example of a jurist misspeaking during the lengthy process of instructing a jury.” He said it’s debatable the extent to which the error could’ve been corrected at trial — even if the defense had strenuously objected. The stakes of the case, he said, are too high.

 We recognize the momentous import of this finding,” Bortner wrote. “We are compelled to grant the defendant a new guilt phase, which is to say the defendant is granted a new trial as a result of this claim of judicial error having been established.”

Bortner also found several errors that warranted a new penalty phase. For example, Francis Cutruzzula, Montalvo’s trial attorney, who’s since been convicted of tax crimes and disbarred in New Jersey, admitted that he “really did not prepare for the penalty phase.”

On April 19, 1998, Montalvo, 54, of York, and his older brother, Milton, forced their way into the apartment of Miriam Ascencio, 44, on East Philadelphia Street near North Pine Street. She and her friend, Manuel Santana, 37, a/k/a Nelson Lugo, were fatally stabbed, York City police said.

Ascencio had a broken nose and stab wounds to both eyes. She had nearly been decapitated. Meanwhile, Santana’s fingers were almost severed.

Milton Montalvo, 56, of York, who had been in a relationship with Ascencio, was found guilty of two counts of first-degree murder and sentenced to death in a separate trial. He’s since been awarded a new penalty phase. The case is on appeal before the Pennsylvania Supreme Court.

Jeff Marshall, Noel Montalvo’s attorney, said he expects the Pennsylvania Attorney General’s Office to appeal the decision.

Marshall said it remains to be seen whether prosecutors will only appeal the judge’s decision to grant his client a new trial — or if they will also challenge the ruling to award a new penalty phase. He said “everything in this case seems to say Noel was not there.”

“It’s a case that probably warranted a new trial,” Marshall said.

In an email, Joe Grace, a spokesman for the Pennsylvania Attorney General’s Office, said, “We will review the Judge’s ruling carefully.”

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