Full opinion text
MEMORANDUM AND ORDER JOYNER, District Judge. This case is once again before this Court for consideration and disposition of Otis Peterkin’s Petition for Writ of Habeas Corpus. For the reasons set forth below, the petition shall be granted. History of the Case The instant petition arises out of a series of events which began on November 29, 1981 with the robbery of the Sunoco Service Station located at Broad and Catherine Streets in South Philadelphia and the murder of two of its employees. On December 2, 1981, the petitioner, Otis Peter-kin, turned himself into the police after learning that a warrant had been issued for his arrest for the crimes. Petitioner was subsequently tried and convicted in September, 1982 of two counts of first degree murder for the shooting deaths of station manager John Smith and attendant Ronald Presbery, as well as one count each of robbery and possession of an instrument of crime. Petitioner’s post-trial motions were denied and he was sentenced to death on the murder convictions, ten to twenty years’ imprisonment on the robbery conviction, and two and one-half to five years on the conviction for possession of an instrument of crime. Thereafter, Mr. Peterkin appealed his convictions and sentences to the Pennsylvania Supreme Court, making the following arguments on direct appeal: 1. That the Pennsylvania Death Penalty Statute is unconstitutional because it creates a conclusive presumption favoring death. 2. That he received ineffective assistance from his trial counsel in that counsel failed to investigate, research and apply the law, failed to interview witnesses, failed to object to the exclusion of those potential jurors who expressed opposition to the death penalty and to the death qualification of the jury, failed to raise constitutional challenges to the death penalty and failed to present evidence of mitigating circumstances and factors. 3. That the trial court erred in allowing the admission of irrelevant and hearsay testimony from, inter alia, Stanley Trader, Maurice Rogers, Diana Dunning and Clarence Sears and in denying petitioner standing to challenge the search of Sherry Diggins’ apartment. 4. That trial counsel was further ineffective in: introducing himself to the jury as petitioner’s “court-appointed” counsel; delivering a closing argument to the jury that was not based on the evidence presented; failing to prepare for sentencing and failing to present mitigation evidence at the penalty stage of the trial. 5. That a proportionality review reflects that the sentence of death was inappropriate and disproportionate in his ease. With the exception of finding that the testimony of Diana Dunning was irrelevant and that the hearsay statements made by Ronald Presbery to Stanley Trader and Clarence Sears were improperly admitted but were nonetheless harmless error, the Pennsylvania Supreme Court rejected petitioner’s assignments of error and upheld his convictions and sentences. See: Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373 (1986). Mr. Peterkin appealed to the U.S. Supreme Court, which denied certiorari in 1987. Peterkin v. Pennsylvania, 479 U.S. 1070, 107 S.Ct. 962, 93 L.Ed.2d 1010 (1987). Petitioner then sought relief pro se under the Pennsylvania Post Conviction Relief Act, 42 Pa.C.S. § 9541, et. seq. Counsel was appointed for him, but after reviewing the issues which Mr. Peterkin sought to raise, concluded that they either lacked merit or had been litigated earlier. Appointed counsel therefore filed a “no-merit” letter and requested permission to withdraw his appearance. The trial court granted counsel leave to withdraw and denied the PCRA petition without a hearing. Mr. Peterkin then appealed pro se to the Pennsylvania Superior Court which transferred the appeal to the Pennsylvania Supreme Court in accord with 42 Pa.C.S. § 9546(d). The Supreme Court remanded the case to the trial court to determine whether Mr. Peterkin was eligible for appointed counsel. Another attorney was subsequently appointed to represent the petitioner and the Pennsylvania Supreme Court then considered whether his convictions and sentences should be set aside on any of the following grounds: 1. He was denied his constitutional right to effective assistance of counsel where trial counsel failed to present character witnesses on his behalf at trial and where post-trial counsel failed to properly raise and argue this issue on direct appeal and in the court below on his PCRA petition. 2. He was denied his constitutional right to a fair trial and to due process of law where the prosecutor engaged in gross misconduct in his closing argument at trial and that both trial and post-trial counsel were ineffective in failing to raise and preserve this issue for appeal purposes. 3. The court failed to advise the jury that mitigating circumstances need not be found unanimously to be weighed and considered by individual jurors and prior counsel were ineffective in failing to raise and previously litigate this issue. 4. No sentence of death was imposed by the jury on either bill of information upon which he was found guilty of murder in the first degree, as both murder bills were submitted jointly to the jury for a single consideration and imposition of penalty. 5. Trial counsel failed to present available evidence in mitigation and an inadequate closing argument at sentencing thereby depriving him of his constitutional right to effective representation and post-trial counsel were ineffective in failing to properly raise this issue on direct appeal and to the court below on his PCRA petition. 6. He was denied his constitutional right to a fair trial and to due process of law as a result of prosecutorial misconduct in the sentencing argument and trial and post-trial counsel were ineffective in failing to object and preserve this error on direct appeal or in the court below on PCRA petition. The Supreme Court found that the prosecutor may have committed error in requesting the jury to be as cold and ruthless as Petitioner had been when he murdered the victims and in telling the jury that the “best witnesses,” i.e., the victims, “are not here,” but if they were, he was “sure” that “they would tell you that it was not my choice to go this way, it was not my choice to go in that kind of pain.” Nevertheless, the Supreme Court found that petitioner had failed to demonstrate that these remarks prejudiced the jury or that if they did, this error was also harmless given the overwhelming evidence of Petitioner’s guilt. Accordingly, the trial court’s denial of Petitioner’s PCRA petition was affirmed. By way of the petition for writ of habeas corpus which is now before this Court, Mr. Peterkin continues to seek to have his convictions and sentences overturned. In addition to reiterating the claims which he raised on direct appeal and in his initial PCRA petition, however, Mr. Peterkin now also asserts the following grounds for the relief sought: 1. That the Commonwealth improperly withheld exculpatory evidence and presented inaccurate, misleading and false evidence and argument to the jury (with regard to the testimony of Sherry Dig-gins and Officers McCabe and Kane, to the statements of Arlene Foster, to fingerprint evidence and the results of the polygraph examination given to Stanley Trader). 2. That trial counsel was ineffective at the pre-trial stage in: —failing to conduct proper discovery; —failing to investigate the crime scene; —failing to review fingerprint and ballistic evidence; —failing to consult and retain forensic experts; —failing to investigate the background and potential involvement of Stanley Trader; —failing to investigate the background and potential involvement of Leroy Little; —failing to investigate previous crimes and incidents at the Sunoco Service Station at Broad and Catherine Streets; —failing to request a bill of particulars; —failing to request or move for disclosure from the prosecution; —failing to provide notice of an alibi defense; and —failing to challenge the affidavits in support of the warrants pursuant to Franks v. Delaware. 3. That trial counsel was ineffective at the trial stage in: —failing to make an effective opening statement; —failing to humanize petitioner; —failing to even suggest the remote possibility to the jury that petitioner was innocent; —failing to cross-examine prosecution witnesses Stanley Trader, Clarence Sears, Sherry Diggins, Alex Charyton, Detective Kane, Officer McCabe, Assistant Medical Examiner Paul Hoyer and Ballistics expert William Fort; —failing to effectively cross-examine the prosecution witnesses that were cross-examined; —failing to present a single witness for the defense, including alibi witnesses; and —failing to present an effective closing argument. 4. That numerous instances of prosecu-torial misconduct occurred entitling him to relief from his convictions, including: —despite the fact that he had no prior criminal record, the prosecutor erred in producing three witnesses who testified that petitioner received public assistance payments at a vacant lot address, that he was registered to vote under two different names (Otis Loach and Otis Peterkin), and that he owned two firearms, neither of which were used in the crimes at issue; —the prosecutor improperly vouched for the strength and veracity of the Commonwealth’s witnesses and case; —the prosecutor improperly urged the jury in his closing argument to “[rjeturn to the values of yester-year”; —the prosecutor improperly used the hearsay testimony of Stanley Trader and Maurice Rogers as substantive evidence in his closing argument. 5. That the trial court gave a defective instruction on “reasonable doubt.” 6. That the evidence properly admitted was insufficient to convince any rational trier of fact that Petitioner was guilty of first degree murder beyond a reasonable doubt. 7. That he is innocent. 8. That there was insufficient evidence that Petitioner robbed John Smith. If anything, it was the Sunoco station that was robbed. 9. That the jury’s declaration upon and issuance of a single death sentence for two capital murder convictions was in violation of the 8th and 14th Amendments. 10. There were no aggravating factors since the only aggravating factor found, i.e., killing in perpetration of a felony was improper given that there was no evidence that Smith was killed in the course of himself being robbed. 11. The Commonwealth failed to provide adequate notice that it would seek the death penalty as such notice was not given until jury selection. 12. The trial court failed to properly instruct the jury on mitigating factors and how to balance them against the aggravating factors. 13. The trial court failed to explain to the jury that in Pennsylvania a life sentence means a life sentence with no possibility of parole. 14. That the trial court’s penalty phase instructions were insufficient and were invalid in that they failed to describe and define the aggravating and mitigating circumstances involved in petitioner’s case and how to weigh or balance the factors. 15. That the trial court’s sentencing instructions and verdict form created a substantial probability that the jurors thought they would be precluded from considering mitigating matters upon which they were not unanimous. Previously, via Memorandum and Order dated December 29, 1998, we had dismissed Mr. Peterkin’s habeas corpus petition without prejudice as mixed (i.e. containing both exhausted and unexhausted claims) and to allow him the opportunity to raise these last issues before the Pennsylvania state courts by affording the Pennsylvania Supreme Court the time to rule on the propriety of the Philadelphia Common Pleas Court’s decision to dismiss his second PCRA petition. The Court of Common Pleas dismissed the petition as premature due to Peterkin’s having filed a petition for writ of habeas corpus in this Court. The Pennsylvania Supreme Court, in turn, upheld the decision to dismiss the petition on the grounds that as it was Peterkin’s second PCRA petition, it was untimely filed. Shortly after the Supreme Court issued its most recent decision affirming the dismissal of Petitioner’s second PCRA petition, Mr. Peterkin moved to reinstate his federal habeas corpus petition. We granted this request and gave the parties leave to file supplemental briefs on the effect of the Pennsylvania Supreme Court’s decision on the now-reinstated federal petition. Not surprisingly, it remains the respondents’ position that this Court is barred from considering those issues raised for the first time in Mr. Peterkin’s second PCRA petition as those claims have been procedurally defaulted. It is to this argument that we now turn first. Discussion A. Procedural Default of Mr. Peter-kin’s Claims. As we discussed in our December, 1998 Memorandum dismissing Mr. Peterkin’s habeas corpus petition without prejudice, in the absence of a valid excuse, a prisoner must first present all federal claims to all levels of the state courts before a district court may entertain a federal habeas petition. Caswell v. Ryan, 953 F.2d 858, 857 (3d Cir.1992), cert. denied, 504 U.S. 944, 112 S.Ct. 2283, 119 L.Ed.2d 208 (1992), citing Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). This exhaustion requirement ensures that state courts have the first opportunity to review federal constitutional challenges to state convictions and preserves the role of state courts in protecting federally guaranteed rights. Id. Where, however, state procedural rules bar a petitioner from seeking further relief in the state courts, the exhaustion requirement is satisfied because there is an absence of available state corrective process. Lines v. Larkins, 208 F.3d 153, 160 (3d Cir.2000); McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir.1999). See Also: Gray v. Netherland, 518 U.S. 152, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996). However, this is not to say that a federal court may without more, then proceed to consider the merits. To the contrary, claims deemed exhausted because of a state procedural rule are procedurally defaulted, and federal courts may not consider their merits unless the petitioner demonstrates that (1) the procedural rule was not independent and adequate; (2) cause for his failure to comply with state procedural rules and prejudice resulting therefrom; or (3) that a fundamental miscarriage of justice will occur if not considered. See: Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000); Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Harris v. Reed, 489 U.S. 255, 260, 109 S.Ct. 1038, 1041-1042, 103 L.Ed.2d 308 (1989); Wenger v. Frank, 2001 WL 1042454, 266 F.3d 218 (3d Cir.2001); Lines v. Larkins, supra; Doctor v. Walters, 96 F.3d 675, 683 (3d Cir.1996). A state rule provides an independent and adequate basis for precluding federal review of a state prisoner’s habeas claims only if: (1) the state procedural rule speaks in unmistakable terms; (2) all state appellate courts refused to review the petitioner’s claims on the merits; and (3) the state courts’ refusal in this instance is consistent with other decisions. Doctor v. Walters, 96 F.3d at 683-684. A state procedural ground is not “adequate” unless the procedural rule is “strictly or regularly followed.” Johnson v. Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981, 1987, 100 L.Ed.2d 575 (1988); Doctor v. Walters, supra. See Also: Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 857-58, 112 L.Ed.2d 935 (1991). Nevertheless, the Supreme Court has held that if a state supreme court faithfully has applied a procedural rule in “the vast majority” of cases, its willingness in a few cases to overlook the rule and address a claim on the merits does not mean that it does not apply the procedural rule regularly or consistently. Banks v. Horn, 126 F.3d 206, 211 (3d Cir.1997), citing Dugger v. Adams, 489 U.S. 401, 410, n. 6, 109 S.Ct. 1211, 1217, n. 6, 103 L.Ed.2d 435 (1989). Accordingly, an occasional act of grace by a state court in excusing or disregarding a state procedural rule does not render the rule inadequate to procedurally bar advancing a habeas corpus claim in a district court. Id. See Also: Cabrera v. Barbo, 175 F.3d 307, 313 (3d Cir.1999). Federal courts should generally determine questions of procedural default according to the habeas waiver law in effect at the time of the asserted waiver. Doctor v. Walters, 96 F.3d at 684, citing Reynolds v. Ellingsworth, 843 F.2d 712, 722 (3d Cir.1988). See Also: Banks v. Horn, 126 F.3d at 212-213. In this case, Mr. Peterkin filed what was his second petition for relief under the Pennsylvania Post Conviction Relief Act, 42 Pa.C.S. § 9541, et. seq. on January 13, 1997, some one month after he filed his petition for habeas corpus in this Court. Section 9545(b)(1) of the PCRA clearly and unmistakably provides that “[a]ny petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final ...” In its decision of December 21, 1998, the Pennsylvania Supreme Court, in reliance upon 42 Pa.C.S. § 9545(b)(1), reasoned that it could not consider the merits of Mr. Peter-kin’s PCRA petition given that the judgment in his case became final on January 27, 1987 when the U.S. Supreme Court denied certiorari on his direct appeal and he was proceeding on his second PCRA application. Thus, the Pennsylvania Supreme Court found that Petitioner was not eligible for the exception to the requirement that the petition be filed within one year of the effective date of the act. See: Commonwealth v. Peterkin, 554 Pa. 547, 554-555, 722 A.2d 638, 641 (1998). Prior to the issuance of this decision however, and as recognized by the U.S. Court of Appeals for the Third Circuit, it was difficult to predict whether the Pennsylvania Supreme Court would disregard the waiver and thus nevertheless consider on the merits claims seeking collateral relief in capital cases. Indeed, in Banks v. Horn, supra, a capital case from the Middle District of Pennsylvania decided some nine months after Petitioner here filed his second PCRA, the Third Circuit held that the district court had erred in holding that the petitioner’s unexhausted claims were procedurally barred. In so holding, the Court noted: We conclude from [Commonwealth v. Szuchon, 534 Pa. 483, 633 A.2d 1098 (1993), Commonwealth v. Travaglia, 541 Pa. 108, 661 A.2d 352 (1995) and Commonwealth v. Beasley, 544 Pa. 554, 678 A.2d 773 (1996) ] that, notwithstanding a procedural bar, it is possible that in a death penalty case the Pennsylvania Supreme Court will not refuse either to entertain a second PCRA petition or to address the claims raised in it. As we explained above, the common pleas court in Banks’ second petition apparently thought the same thing as it indicated that despite its determination that the petition was barred “it may well be that the Supreme Court will review its merits. Accordingly, we conclude that the district court erred in finding Banks’ unexhausted claims procedurally barred. Although the district court correctly found in Banks III that Banks’ unex-hausted claims do not meet the stated criteria for Pennsylvania courts to consider a second PCRA petition, we believe that Banks III did not give adequate recognition to the Pennsylvania Supreme Court cases demonstrating that it effectively looks beyond those criteria in death penalty cases.” 126 F.3d at 212-213. Hence, while the Commonwealth appears to be correct that since the Pennsylvania Supreme Court declined to review this petitioner’s second PCRA on the merits it has consistently applied the waiver and time bar provisions of the PCRA, we cannot find that at the time Mr. Peterkin filed his second petition, these provisions were strictly or regularly followed. We therefore must conclude that the waiver and bar provisions of the PCRA were not, at the time of the filing of the petition at issue in this case, adequate and independent procedural rules. In accord, Jermyn v. Horn, 266 F.3d 257 (3d Cir.2001). Accordingly on this habeas petition, we shall consider the merits of the additional claims which Mr. Peterkin raised in his second PCRA application. B. Applicability of AEDPA. As a threshold matter, we must determine whether the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) should be applied in this case. In this regard,' Petitioner contends that the Act is inapplicable to his request for habeas relief because he initiated his habeas proceedings on June 27, 1995 when he filed his Motion for Appointment of Federal Habeas Corpus Counsel and to Proceed In Forma Pauperis. Thus, Petitioner argues, his habeas case was pending on April 24, 1996, the date that AEDPA became effective. It is the Commonwealth’s position that it is the date on which Mr. Peter-kin actually filed his habeas corpus petition which governs the applicability of AEDPA. Since the petition itself was not filed until December 5, 1996, some six months after the Act’s effective date, AEDPA applies here. In essence, AEDPA extensively amended the statutory provisions that regulate federal habeas corpus proceedings, most particularly § 2244 and §§ 2253-2255 of chapter 153 of title 28 of the United States Code, the provisions which govern all ha-beas proceedings in the federal courts. These new provisions of chapter 153, however, were to be applied only to cases filed after the Act became effective. Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997). It is on the basis of Lindh and McFarland v. Scott, 512 U.S. 849, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994) that Petitioner argues the inapplicability of AEDPA to this habeas case. In McFarland, the U.S'. Supreme Court ruled that a capital defendant need not file a formal habeas corpus petition in order to invoke his right to counsel under 21 U.S.C. § 848(q)(4)(B) and to establish a federal court’s jurisdiction to enter a stay of execution. The Court therefore concluded that a “post conviction proceeding” within the meaning of § 848(q)(4)(B) is commenced by the filing of a death row defendant’s motion requesting the appointment of counsel for his federal habeas corpus proceeding. 512 U.S. at 836, 114 S.Ct. at 2562-2563, 129 L.Ed.2d 642. Although this appears to be an issue of first impression in the Third Circuit, since the Lindh and McFarland decisions, a number of courts outside of the Third Circuit have been confronted with the very same argument advanced by Petitioner here. With the exception of the Ninth Circuit, those Courts of Appeals which have had occasion to address the issue of whether the filing by a capital defendant of a Motion for Appointment of Counsel “commences” a habeas corpus proceeding within the meaning of 28 U.S.C. § 2251, et. seq. have all uniformly held that the relevant date for determining the applicability of the AEDPA to habeas corpus petitions is the date that the actual habeas corpus petition is filed — not the date on which the motion for appointment of counsel is filed. See, e.g.: Foster v. Schomig, 223 F.3d 626, 631 (7th Cir.2000); Moore v. Gibson, 195 F.3d 1152 (10th Cir.1999); Gosier v. Welborn, 175 F.3d 504 (7th Cir.1999), cert. denied, 528 U.S. 1006, 120 S.Ct. 502, 145 L.Ed.2d 387 (1999); Williams v. Coyle, 167 F.3d 1036 (6th Cir.1999); Calderon v. U.S. District Court for the Central District of California, 163 F.3d 530 (9th Cir.1998), cert. denied, 526 U.S. 1060, 119 S.Ct. 1377, 143 L.Ed.2d 535 (1999); Nobles v. Johnson, 127 F.3d 409 (5th Cir.1997), cert. denied, 523 U.S. 1139, 118 S.Ct. 1845, 140 L.Ed.2d 1094 (1998). We agree with the rationale advanced in Moore, Williams and Nobles, that, in ordinary usage, a case is pending after it is commenced by either filing a complaint or by the service of a summons. Indeed, the filing of a habeas corpus petition is analogous to the filing of a civil complaint in that the Rules of Civil Procedure apply to habeas proceedings to the extent that those rules do not conflict with the specific rules governing § 2254 cases. Likewise, we find that Mr. Peter-kin’s habeas action was not “pending” until he filed his formal petition for a writ of habeas corpus. See, Williams v. Coyle, 167 F.3d at 1038; BLACK’S LAW DICTIONARY 1134 (6 th Ed.1990). Accordingly, AEDPA shall be applied in this case. C. Standards Governing Habeas Corpus Petitions. Under 28 U.S.C. § 2254(d), An application for a "writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim- (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. Moreover, under § 2254(e)(1), In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), a capital case from Virginia, the U.S. Supreme Court had occasion to interpret the scope of habeas review established by the AED-PA amendment to § 2254(d)(1): Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied — the state-court adjudication resulted in a decision that (1) “was contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) “involved an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court of the United States.” Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case. Williams, 120 S.Ct. at 1523. Stated otherwise, to proceed under the “contrary to” provision, the court must first identify the applicable Supreme Court precedent and determine whether it resolves the petitioner’s claim. Werts v. Vaughn, 228 F.3d 178, 197 (3d Cir.2000). It is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court’s; rather, the petitioner must demonstrate that Supreme Court precedent requires the contrary outcome. This standard precludes granting habeas relief solely on the basis of simple disagreement with a reasonable state court interpretation of the applicable precedent. Id., citing Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 888 (3d Cir.1999), cert. denied, 528 U.S. 824, 120 S.Ct. 73, 145 L.Ed.2d 62 (1999). Then, if it is determined that the state court decision is not “contrary to” the applicable Supreme Court precedent, the court is required to advance to the second step in the analysis — whether the state court decision was based on an “unreasonable application” of Supreme Court precedent. Id. The “unreasonable application” inquiry, in turn, requires the habeas court to “ask whether the state court’s application of clearly established federal law was objectively unreasonable.” Thus, under that clause, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Hameen v. State of Delaware, 212 F.3d 226, 235 (3d Cir.2000), quoting Williams, 120 S.Ct. at 1521. Rather, that application must also be unreasonable. Jermyn v. Horn, 266 F.3d at 282. See Also: Rompilla v. Horn, 2000 WL 964750, 2000 U.S. Dist. LEXIS 9620 (E.D.Pa.2000). D. Petitioner’s Claims. 1. That the admission of hearsay testimony violated Petitioner’s constitutional right to confront the witnesses against him. By this petition, Mr. Peterkin again challenges the trial court’s admission of certain statements which were allegedly made by Ronald Presbery to Stanley Trader, Maurice Rogers and Clarence Sears in the hours preceding his death. Specifically, Petitioner contends that not only was this testimony inadmissible hearsay but it further violated his rights under the Confrontation Clause. It is well-established that in all state and federal criminal prosecutions, the accused has a right guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, to be confronted with the witnesses against him. Lilly v. Virginia, 527 U.S. 116, 123, 119 S.Ct. 1887, 1893, 144 L.Ed.2d 117 (1999), citing Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact. Maryland v. Craig, 497 U.S. 836, 845, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). While a literal interpretation of the Confrontation Clause could bar the use of any out-of-court statements when the declarant is unavailable, the Supreme Court has held that the Confrontation Clause permits, where necessary, the admission of certain hearsay statements against a defendant despite the defendant’s inability to confront the declarant at trial. Idaho v. Wright, 497 U.S. 805, 813-814, 110 S.Ct. 3139, 3145, 111 L.Ed.2d 638 (1990); Webb v. Lane, 922 F.2d 390, 392 (7th Cir.1991). Indeed, while the Supreme Court has recognized that the hearsay rules and the Confrontation Clause are generally designed to protect similar values and stem from the same roots, the Confrontation Clause bars the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule. White v. Illinois, 502 U.S. 346, 353, 112 S.Ct. 736, 741, 116 L.Ed.2d 848 (1992), citing California v. Green, 399 U.S. 149, 155, 90 S.Ct. 1930, 1933, 26 L.Ed.2d 489 (1970) and Dutton v. Evans, 400 U.S. 74, 86, 91 S.Ct. 210, 218, 27 L.Ed.2d 213 (1970); Idaho v. Wright, 497 U.S. at 814, 110 S.Ct. at 3146. See Also: Bourjaily v. United States, 483 U.S. 171, 182, 107 S.Ct. 2775, 2782, 97 L.Ed.2d 144 (1987). In Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 597 (1980), the Supreme Court set forth a general approach for determining when incriminating statements admissible under an exception to the hearsay rule also meet the requirements of the Confrontation Clause. The Court noted that the Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, the clause establishes a rule of necessity such that in the usual case, the prosecution must either produce or demonstrate the unavailability of the declarant whose statement it wishes to use against the defendant. Second, once a witness has been shown to be unavailable, his statement is admissible only if it bears adequate indicia of reliability. Idaho v. Wright, 497 U.S. at 814-815, 110 S.Ct. at 3146. Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. Id. In other cases, the evidence must be excluded, at least in the absence of a showing of particularized guarantees of trustworthiness. Id. See Also: Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986). Here, the trial court allowed three witnesses to testify to certain statements which victim Ronald Presbery had purportedly made in the late morning and early afternoon hours on the day he was murdered. Maurice Rogers, an off-duty employee of the Sunoco Station, testified that Mr. Presbery called him at about 11 a.m. on Sunday, November 29, 1981 as he was preparing to leave for church, apparently at the request of Manager John Smith. In the course of this conversation, Mr. Presbery told Mr. Rogers that Mr. Smith was in the back office with Petitioner and that he was getting ready to make a bank deposit. Mr. Smith then spoke with Rogers and asked him how many cash-containing envelopes he had placed into the safe during his shift the preceding night. Smith told him that since he had paperwork to do at the station, he wouldn’t be able to go to church that day and asked Rogers to say a prayer for him. Subsequent to his discussion with Smith, Rogers again spoke with Presbery, who told him that Mr. Peterkin and Mr. Smith were back there testing a gun to which Rogers replied that Smith could get in trouble since the company didn’t allow anyone in the station to have guns. Presbery then advised Rogers that Peterkin was then locking the door and getting into Smith’s Cadillac. When Rogers asked where Smith was, Presbery told him that he must have gone across the street to get something to eat. (N.T. 9/22/82,1-13). Similarly, both Stanley Trader and Clarence Sears testified that at around noon on November 29, 1981, they pulled up to the Sunoco Station at Broad and Catherine Streets and that Ronald Presbery walked over to the "driver’s side of their vehicle and told them that the petitioner, who was in the attendant’s booth at that time, had a gun and the dial to the safe. Given that at the time of Petitioner’s trial, Mr. Presbery was dead, it is clear that the Commonwealth amply demonstrated his unavailability. We therefore consider the contested statements to determine whether or not they possess the requisite indicia of reliability, i.e., whether they fall under any of the recognized exceptions to the hearsay rule. At the time of Petitioner’s trial in 1982, Pennsylvania’s law on evidence recognized certain exceptions to the hearsay rule, which have largely since been codified and virtually mirror that of the Federal Rules of Evidence. “Hearsay,” of course, is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. See: Fed. R.Evid. 801(c); Tennessee v. Street, 471 U.S. 409, 413, 105 S.Ct. 2078, 2081, 85 L.Ed.2d 425 (1985); Commonwealth v. Murphy, 493 Pa. 35, 43, 425 A.2d 352, 356 (1981). The exceptions to the hearsay rule regardless of the availability of the declar-ant to testify at trial recognized by both Federal and Pennsylvania law include: (1) Present Sense Impression. (2) Excited Utterance. (3) Then existing mental, emotional or physical condition. (4) Statements for purposes of medical diagnosis or treatment. (5) Records of Regularly Conducted Activity. (6) Records of Religious Organizations. (7) Marriage, Baptismal and Similar Certificates. (8) Family Records. (9) Records of Documents Affecting an Interest in Property. (10) Statements in Documents Affecting an Interest in Property. (11) Statements in Ancient Documents. (12) Market Reports, Commercial Publications. (13) Reputation Concerning Personal or Family History. (14) Reputation Concerning Boundaries or General History. (15) Reputation as to Character. (16) Admission by Party Opponent. Fed.R.Evid. 803; Pa.R.Evid. 803. In addition, where the declarant is shown to be unavailable to testify, Pennsylvania and Federal law recognize additional hearsay exceptions for: (1) Former Testimony. (2) Statement Under Belief of Impending Death. (3) Statement Against Interest. (4)Statement of Personal or Family History. In this case, the trial court admitted the testimony of Stanley Trader and Clarence Sears as “circumstantial evidence going to show the motive for the crime.” It admitted the testimony of Maurice Rogers to show Ronald Presbery’s state of mind at the time that he ostensibly heard a gunshot from the station’s back office, saw Petitioner lock the door and drive off in Smith’s car. On direct review, the Pennsylvania Supreme Court found that although the “state of mind” exception was not applicable to the admission of Rogers’ testimony, the testimony was properly admitted under the present sense impression exception. See, Commonwealth v. Peterkin, 511 Pa. 299, 312-313, 513 A.2d 373, 379 (1986). The Court further found that, contrary to the trial court’s opinion, the admission of Trader’s and Sears’ testimony regarding Presbery’s statements to them was not proper under the present sense impression exception given the absence of evidence indicating the amount of time which lapsed between Presbery’s observation of a gun and safe dial in Petitioner’s possession and his remarks to Trader and Sears. To constitute a “present sense impression,” under Pennsylvania law as it existed at the time of trial, the witness’s statements must describe or refer to present physical or emotional states and be made contemporaneously with the event to which the declaration refers. See: Commonwealth v. Chamberlain, 557 Pa. 34, 41, 731 A.2d 593, 596 (1999); Commonwealth v. Pronkoskie, 477 Pa. 132, 137, 383 A.2d 858, 860 (1978), citing, inter alia, McCormick, Evidence, § 297 (2nd Ed.1972); Commonwealth v. Coleman, 458 Pa. 112, 326 A.2d 387 (1974). See Also: Pa.R.Evid. 803(1). Fed.R.Evid. 803(1) similarly describes the exception as “[a] statement describing or explaining an event or condition made while the declar-ant was perceiving the event or condition or immediately thereafter.” There are thus three principal requirements which must be met before hearsay evidence may be admitted as a present sense impression: (1) the declarant must have personally perceived the event described; (2) the declaration must be an explanation or description of the event rather than a narration; and (3) the declaration and the event described must be contemporaneous. U.S. v. Mitchell, 145 F.3d 572, 576 (3d Cir.1998). In applying the definitions of present sense impression under both Pennsylvania and Federal law to the facts of this case pursuant to the standards set forth in 28 U.S.C. § 2254, we can find no error in the findings and conclusions of the Pennsylvania Supreme Court that the testimony of Maurice Rogers fell within that exception while the testimony of Stanley Trader and Clarence Sears did not. Indeed, in reviewing Mr. Rogers’ testimony in its entirety, it appears clear that in the telephone conversation between Presbery and Rogers, Presbery was describing the sequence of events which he was then hearing and/or observing, i.e., hearing a gunshot, seeing Petitioner lock the office door, get into Smith’s car and drive off, because he wanted to know whether Petitioner should have had a key to the station. We agree with the Supreme Court that Presbery’s statements were made contemporaneously to his observations and therefore possessed the necessary indicia of reliability to be admissible under the present sense impression exception. Accordingly, we cannot find that the state court’s decision with respect to the admissibility and inadmissibility of these statements was contrary to or involved an unreasonable application of clearly established Federal law or resulted in a decision that was based on an unreasonable determination of the facts in fight of the evidence presented in the state proceedings. However, we do not reach the same conclusion with regard to the testimony of Trader and Sears. To be sure, we can find no evidence in the record of this case to demonstrate that the statements made by the victim to these witnesses bear the “adequate indicia of reliability” pre-requisite to admissibility. Thus while we find no basis upon which to grant habeas relief to Petitioner for the testimony of Maurice Rogers, we do find that Mr. Peterkin’s rights under the Confrontation Clause were violated by the admission of Presbery’s statements to Sears and Trader. Accordingly, we must now consider the correctness of the Supreme Court’s conclusion that the admission of the hearsay testimony from Messrs. Trader and Sears constituted harmless error beyond a reasonable doubt. See, N.T. 9/21/82, pp. 1-20; Commonwealth v. Peterkin, 511 Pa. 299, 313-315, 513 A.2d 373, 380-381 (1986). In its decision on this issue, the Pennsylvania Supreme Court applied the standards for determining whether trial error is harmless set forth in Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978): “This Court has stated that an error may be harmless where the properly admitted evidence of guilt is so overwhelming and the prejudicial effect of the error is so insignificant by comparison that it is clear beyond a reasonable doubt that the error could not have contributed to the verdict. Under this approach, a reviewing court first determines whether the untainted evidence, considered independently of the tainted evidence, overwhelmingly establishes the defendant’s guilt. If ‘honest, fairminded jurors might very well have brought in not guilty verdicts,’ an error cannot be harmless on the basis of overwhelming evidence.Once the court determines that the evidence of guilt is overwhelming, it then decides if the error was so insignificant by comparison that it could not have contributed to the verdict... .Our cases support the proposition that in deciding whether an error is harmless because there is properly admitted evidence of guilt the untainted evidence relied upon must be uncontradicted -(citations omitted).” Peterkin, 511 Pa. at 313-314, 513 A.2d at 380, quoting Story, 476 Pa. at 412-413, 383 A.2d at 166. The standard for determining whether or not error is harmless such as to foreclose relief on a petition for habeas corpus, however, is slightly different. Instead, the inquiry required of a habeas court is whether, in light of the record as a whole, the alleged error had a substantial and injurious effect or influence in determining the jury’s verdict. Calderon v. Coleman, 525 U.S. 141, 146-147, 119 S.Ct. 500, 503-504, 142 L.Ed.2d 521 (1998); Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993); Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946). It should be noted that constitutional errors have been categorized as one of two types: structural error or trial error. Yohn v. Love, 76 F.3d 508, 522 (3d Cir.1996). A structural error is a defect in the trial mechanism itself, affecting the entire trial process and is per se prejudicial. Id., citing Arizona v. Fulminante, 499 U.S. 279, 309-310, 111 S.Ct. 1246, 1264-65, 113 L.Ed.2d 302 (1991). Trial error occurs during the presentation of the case to the jury and may be quantitatively assessed in the context of all other evidence; thus trial errors are subject to a harmless error analysis. Id. Moreover, when a federal judge in a habeas proceeding is in grave doubt about whether a trial error of federal law had “substantial and injurious effect or influence in determining the jury’s verdict,” that error is not harmless and the petitioner must win. O’Neall v. McAninch, 513 U.S. 432, 436, 115 S.Ct. 992, 995, 130 L.Ed.2d 947 (1995). See Also: California v. Roy, 519 U.S. 2, 4-5, 117 S.Ct. 337, 338, 136 L.Ed.2d 266 (1996). It has further been held to be inappropriate to ask whether there was sufficient evidence to support the result, apart from the phase of the trial affected by the error. Rather, the correct inquiry is whether the error had a substantial influence on the verdict despite sufficient evidence to support the result apart from the error. Hassine, supra, citing Yohn, 76 F.3d at 523. Viewing this improper hearsay testimony in the context of the other evidence and the preceding principles, we note that this was not the only instance of “harmless trial error” which the Pennsylvania Supreme Court found. To be sure, the Supreme Court on direct review also found that the testimony of one Diana Dunning that she saw the petitioner in possession of a gun other than the murder weapon some two days before the murders took place was irrelevant and thus not properly admitted. Commonwealth v. Peterkin, 511 Pa. at 315-316, 513 A.2d at 381. Additionally, on petitioner’s first PCRA petition, the Supreme Court found that: “[w]hen the prosecutor requested that the jury be as cold and ruthless as the appellant was when he murdered his victims, the prosecutor went beyond the appropriate oratorical boundaries and defense counsel should have objected to the statements.” See: Commonwealth v. Peterkin, 588 Pa. at 464-465, 649 A.2d at 125. Again, under 28 U.S.C. § 2254(e)(1), a determination of a factual issue made by a State court shall be presumed to be correct and it is the applicant who bears the burden of rebutting the presumption of correctness by clear and convincing evidence. For purposes of this analysis, then, we shall presume that the Supreme Court was correct in these findings, save for its determination that these instances of error, too, were harmless. In application and careful consideration of all of the foregoing, we find that we are in grave doubt as to the harmlessness of the hearsay testimony of Stanley Trader and Clarence Sears, the testimony of Diana Dunning and the prosecutor’s argument. Indeed, Mr. Presbery’s statements that petitioner was in the station attendant’s booth with a gun and the dial to the safe was admitted not once but twice— through the testimony of both Trader and Sears. Mr. Trader was asked about Mr. Presbery’s remarks to him on some three separate occasions during his direct examination by the Commonwealth’s attorney, yet a cautionary instruction was only given to the jury on one of these occasions. What’s more, the hearsay testimony was also referred to as substantive evidence in the prosecutor’s opening statement and closing argument. It was yet again presented at the sentencing phase of the trial when the jury considered whether to impose the death penalty. (N.T. 9/20/82, 18-19, 9/21/82, 21-28, 30, 34, 71-72, 9/24/82, 39-41,146-151). Moreover, in the absence of the evidence “harmlessly” improperly admitted, we find that the only evidence linking Petitioner to the Sunoco station on the day of the crime consisted of: (1) Maurice Rogers’ testimony regarding his Sunday morning conversations with Smith and Pres-bery; (2) Stanley Trader’s testimony that when he spoke with the petitioner at the station at approximately 4:15 p.m. on November 29, 1981, Petitioner told him that Presbery had left with some other people in a car; and (3) Sherry Diggins’ testimony that on the night of the murders, Petitioner came to her apartment with some $600 in envelopes, gave her the murder weapon (a .32 caliber Smith and Wesson revolver) and asked her to destroy the envelopes and a lot of spent shells. While this testimony is admittedly damning to Petitioner, we cannot concur with the state court that it constitutes “overwhelming evidence” of Petitioner’s guilt. To be sure, there were various inconsistencies in Dig-gins’ and Trader’s testimony, Stanley Trader had himself been convicted of burglary some three years previously, and Coy Gibson testified that he saw and spoke with Presbery at the station between 4:30 and 5:00 p.m. on the day of the murders at which time he and Presbery were the only ones there. (N.T. 9/20/82, 33-34, 62-63). See Also: Peterkin, 538 Pa. at 464-465, 649 A.2d at 125. Accordingly, under Brecht and O’Neal, both supra, we cannot agree with the findings and conclusions of the state courts that the admission of this evidence was “harmless error.” We therefore find that the decisions of the Pennsylvania state courts to first admit this hearsay testimony and to later find its admission to be harmless error were contrary to and involved an unreasonable application of clearly established Federal law. Mr. Peterkin is entitled to habeas corpus relief on the basis of this improperly admitted evidence. 2. That Petitioner’s constitutional rights were violated as the result of prosecutorial misconduct during the guilt/innocence stage of his trial. (a) That the prosecutor engaged in misconduct by introducing evidence of uncharged crimes. In addition to Diana Dunning’s testimony that she saw the petitioner with a gun (not the murder weapon) two days before the crimes, Petitioner contends that the Commonwealth also adduced evidence that he had committed two other, uncharged and unrelated crimes — welfare fraud and voter fraud. In so doing, Petitioner argues, the Commonwealth violated his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the Constitution and trial and appellate counsel were ineffective for failing to raise these issues at trial and on direct review. The appropriate standard of review on habeas corpus for a claim of prosecutorial misconduct is the narrow one of due process and not the broad exercise of supervisory power. Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986). The relevant question is whether the prosecutor’s comments so infected the trial with unfairness as to make the resulting conviction a denial of due process. Id., citing Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). Accordingly, the Supreme Court has instructed federal courts reviewing habeas claims brought by state prisoners and premised upon prosecutorial misconduct in summation to distinguish between ordinary trial error of a prosecutor and that sort of egregious misconduct amounting to denial of constitutional due process — the question is thus whether the prosecutorial remarks were so prejudicial that they rendered the trial in question fundamentally unfair. Floyd v. Meachum, 907 F.2d 347, 353 (2nd Cir.1990). See Also: Kontakis v. Beyer, 19 F.3d 110, 120 (3d Cir.1994); Keller v. Larkins, 89 F.Supp.2d 593, 604 (E.D.Pa.2000), aff'd 251 F.3d 408 (3d Cir.2001). Similarly, in some circumstances, the admission of evidence in a state criminal proceeding can rise to the level of a constitutional error. In such cases, the petitioner must show that the “use of the evidence” caused “fundamental unfairness” in violation of due process. Kontakis, supra., citing Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166 (1941). See Also: Bisaccia v. Attorney General, 623 F.2d 307, 312 (3d Cir.1980), cert. denied, 449 U.S. 1042, 101 S.Ct. 622, 66 L.Ed.2d 504 (1980); Keller v. Larkins, 89 F.Supp.2d at 604. However, just as “not every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes a failure to observe that fundamental fairness essential to the very concept of justice, not every error in balancing probative value against prejudicial effect amounts to error which rises to constitutional dimensions.” Lesko v. Owens, 881 F.2d 44, 51 (3d Cir.1989), cert. denied, 493 U.S. 1036, 110 S.Ct. 759, 107 L.Ed.2d 775 (1990) quoting United States ex rel. Perry v. Mulligan, 544 F.2d 674 (3d Cir.1976), cert. denied, 430 U.S. 972, 97 S.Ct. 1659, 52 L.Ed.2d 365 (1977) and Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431(1974). To constitute the requisite denial of fundamental fairness sufficient to issue a writ of habeas corpus, the erroneously admitted evidence must be “material in the sense of a crucial, critical, highly significant factor,” and the probative value of the evidence must be so conspicuously outweighed by its inflammatory content that a defendant’s constitutional right to a fair trial has been violated. Lesko v. Owens, 881 F.2d at 52; Robinson v. Vaughn, 1995 WL 572177 at *3 (E.D.Pa.1995), quoting Jameson v. Wainwright, 719 F.2d 1125, 1127 (11th Cir.1983), cert. denied, 493 U.S. 1036, 110 S.Ct. 759, 107 L.Ed.2d 775 (1990). In conducting this inquiry, the federal court must accord great deference to the state trial court given that it is in a unique position to assess the relative probative value and inflammatory effect of proffered testimony. Id., citing United States v. Guerrero, 803 F.2d 783, 785 (3d Cir.1986). It should be noted that evidence may be unfairly prejudicial if it appeals to the jury’s sympathies, arouses its sense of horror, provokes its instinct to punish or otherwise may cause a jury to base its decision on something other than the established propositions in the case. Lesko v. Owens, 881 F.2d at 55. In this case, Detective Robert Kane testified without objection that he determined that Otis Peterkin was also known as Otis Loach, Jr. because a check of the voter registration records revealed that there was an Otis Loach, Jr. and an Otis Peter-kin registered to vote at 1536 Clearview Street in Philadelphia. (N.T. 9/21/82, 157-158; 9/22/82, 35-36). Additionally, immediately after the Custodian of Records from the Department of Public Assistance testified that Otis Peterkin was receiving welfare payments of $87.40 every two weeks at an address of 5522 Green Street, Detective Kane again testified without objection that 5522 Green Street was, in fact, a vacant lot. (N.T. 9/22/82, 18-19, 23; 36). Subsequent to this testimony, the petitioner, through his trial counsel, stipulated that he was on public assistance using the address 5522 Green Street for October, November and early December, 1981 and that he was also known as Otis Loach, Jr. (N.T. 9/21/82,158; 9/22/82, 94-95). Under Pennsylvania law, evidence of other unrelated crimes is generally inadmissible to prove the commission of a crime unless it is being offered to prove (1) motive, (2) intent, (3) a common scheme or plan involving the commission of two or more crimes so closely related that proof of one tends to prove the other, (4) the identity of the perpetrator or (5) the absence of mistake or accident. Lesko v. Owens, 881 F.2d at 52 citing Commonwealth v. Styles, 494 Pa. 524, 525-526, 431 A.2d 978, 980 (1981). In addition, “other crimes” evidence, though relevant, must be excluded if the probative value is outweighed by the danger that the facts offered may unduly arouse the jury’s prejudice or hostility. Id. While the evidence regarding petitioner’s welfare status was relevant and probative of his financial status at the time and possible motive for the robbery, we can find no relevance or probative value to his voter registration records or to the address at which he received his welfare payments, nor was it offered under any of the foregoing five “MIMIC” exceptions. Had this evidence merely been admitted without more, we would not have found that its admission was sufficient to rise to the level of a constitutional violation. However, despite the parties’ stipulations to Petitioner’s identity and receipt of welfare, the prosecutor specifically argued that Petitioner committed welfare fraud in his closing argument. (N.T. 9/24/82, 41-42, 44). By so doing, we find that the Commonwealth attached such additional weight to this evidence as to shift the balance in favor of its inflammatory and unfairly prejudicial content and away from its probative value. We thus conclude that Mr. Peterkin’s constitutional right to a fair trial has been violated by the admission of this evidence as well. (b) That the Petitioner’s constitutional rights were violated when the prosecutor commented on his right to remain silent during his closing argument to the jury. Petitioner also argues that the prosecutor made two separate references to his constitutional right to remain silent during his closing argument to the jury and that in so doing, violated his rights under the Fifth and Fourteenth Amendments. The Fifth Amendment provides, in relevant part that “[njo person shall ... .be compelled in any criminal case to be a witness against himself ...” The U.S. Supreme Court has held that “the Fifth Amendment, in its direct application to the Federal Government and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233 14 L.Ed.2d 106 (1965); U.S. v. Balter, 91 F.3d 427, 441 (3d Cir.1996), cert. denied, 519 U.S. 1011, 117 S.Ct. 517, 136 L.Ed.2d 406 (1996). It is thus the normal rule in a criminal case that no negative inference from the defendant’s failure to testify is permitted; this rule applies in both the guilt and penalty phases of a trial. Mitchell v. U.S., 526 U.S. 314, 119 S.Ct. 1307, 1314-1315, 143 L.Ed.2d 424 (1999). The Third Circuit’s well-established test for determining whether a prosecutor’s remark violates Griffin is “whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.” Lesko v. Lehman, 925 F.2d 1527, 1544 (3d Cir.1991), quoting Bontempo v. Fenton, 692 F.2d 954, 959 (3d Cir.1982) and United States v. Chaney, 446 F.2d 571, 576 (3d Cir.1971). In making this determination, the challenged prosecutorial remark must be examined in its trial context. Id., citing United States v. Robinson, 485 U.S. 25, 31-33, 108 S.Ct. 864, 868-870, 99 L.Ed.2d 23 (1988) and Lockett v. Ohio, 438 U.S. 586, 595, 98 S.Ct. 2954, 2959, 57 L.Ed.2d 973 (1978). Here, the prosecutor’s closing argument included the following: ... Maybe, you say that the Commonwealth didn’t show that but the same man that gave the address to a vacant lot in Germantown to get Public Assistance. Who is deceiving who, as he sits there today, calmly in a suit, passive and cool, protected by the laws of the Commonwealth, protected by the laws encompassed in the Bill of Rights? No one begrudges him that, ladies and gentlemen, but let’s think about the two people that are not here.... ... Oh yes, he is passive here now but the destruction that he wreaked, or visited on two human beings in a civilized society, I hope we can’t tolerate this.... (N.T. 9/24/82, 44, 51). In evaluating this argument in conjunction with the preceding legal principles, we can reach no other conclusion but that these prosecutorial remarks were so prejudicial that they, together with the other improprieties, rendered the trial in question fundamentally unfair. While we would agree with the Commonwealth that had the prosecutor merely used the term “passive” to describe Petitioner, his argument could have been construed as a suggestion that the jury should not be swayed by his unthreatening present demeanor in determining whether the evidence would support a verdict that he killed two people. (See: Commonwealth’s Response to Petition for Writ of Habeas Corpus, at p. 48, n. 35). However, the prosecutor here went far beyond merely contending that the petitioner’s present demeanor was passive. To the contrary, these remarks clearly implied that by dressing in a suit, sitting calmly and passively and invoking his right to remain silent throughout his trial, the petitioner was trying to deceive the jury. That these remarks were made immediately after the prosecutor’s remarks concerning Petitioner’s alleged welfare fraud only serves to further emphasize the inference that Mr. Peterkin’s goal in not testifying was to deceive the members of the jury panel. Furthermore, in considering whether or not the admission of these remarks constituted harmless error in the context of the record as a whole and notwithstanding the trial court’s instruction that the speeches of counsel were only to be considered to the extent that they were supported by the evidence, we again find that we have