Full opinion text
MEMORANDUM AND ORDER KAUFFMAN, District Judge. Before the Court is the Petition of Alfred Albrecht, Sr. (“Petitioner”) for a Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the Petition will be granted with respect to Petitioner’s sentence and denied with respect to his underlying conviction. I. Background On August 8, 1980, Petitioner was convicted by a jury of one count of first degree murder, two counts of second degree murder, and four counts of arson for the killing of his wife, his mother, and his daughter in a fire at the family’s home. Answer to Petition for Writ of Habeas Corpus (“Answer”) at 8. On May 2, 1983, in accordance with the jury’s recommendation, Petitioner was sentenced to death. At trial, the Commonwealth established that on May 1,1979, at approximately 6:26 a.m., local fire departments responded to a residential fire at Petitioner’s home in Per-kasie, Bucks County. Answer at 1. When the fire was extinguished, they entered the house and found the bodies of Petitioner’s wife, mother and daughter, who had died from the combined effect of the heat, gases, and lack of oxygen. Commonwealth v. Albrecht, 510 Pa. 603, 511 A.2d 764, 766 (1986) (“Albrecht I ”); Answer at 1, citing Trial Transcript (“T.T.” 7/29/80, pp. 6-19). Petitioner’s son survived by jumping out of a second story window. Answer at 1, citing T.T.s 7/22/80, 7/30/80. Where Petitioner was when the fire started is disputed. Petitioner avers that he was in bed. This contention is supported by the testimony of his son, who said that he heard his father get out of bed after the fire had started. Petitioner’s PosWdearing Memorandum of Law, Exhibit 1, at 37. Petitioner is a smoker and claims that he inadvertently left a lit cigarette on the chair in the living room. Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 707 (1998) (“Albrecht II ”). Petitioner claims that he awoke smelling smoke and walked out of his first floor bedroom and into the living room, where he observed the raging fire. He then fled the house immediately and only when outside realized that his family was trapped inside. Petitioner was advised by a neighbor, a fireman, not to re-enter the house. Petitioner’s Post-Hearing Memorandum, Ex. 1, at 50. The Commonwealth, however, asserts that Petitioner started the fire in the kitchen, using gasoline as an accelerant. Answer at 15-16, citing T.T.s 7/23/80, 7/24/80, 7/25/80. According to Commonwealth fire experts, the presence of petroleum distillates in the wood under the kitchen floor, the presence of lead on various objects found at the scene, the presence of gasoline in the ceiling tiles, and the “blistering” and burn patterns found in the wood in the living room and kitchen demonstrated that the fire could not have been accidental and that a liquid accelerant (gasoline) was used to start the fire. Answer at 2, citing T.T.s 7/28/80, 7/31/80. When police searched Petitioner’s car, they found an empty gas can with Petitioner’s fingerprints and soot on it. Answer at 2, citing T.T.s 7/24/80, 7/28/80. The soot was determined to contain gasoline. Answer at 3, citing T.T. 7/31/80. A local gas station employee testified that Petitioner had attempted to purchase gasoline for that can on the afternoon before the fire. Answer at 3, citing T.T. 7/31/80. The Commonwealth also introduced evidence that Petitioner abused his wife physically and emotionally and that he had threatened to harm her in the weeks before her death. Albrecht I, 511 A.2d at 766-768. This evidence included testimony from his wife’s attorney about Petitioner’s alleged violation of a December 1978 Protection from Abuse Act order. Id., 511 A.2d at 767. It also included testimony from neighbors and friends who observed the physical manifestations of abuse, including bruises, missing clumps of hair, and cigarette burns on Petitioner’s wife in the months preceding her death. Id.; Answer at 3-6. Neighbors further testified about a particular incident when Petitioner’s wife took refuge from Petitioner at their house. Albrecht I, 511 A.2d at 767. The Commonwealth also offered testimony that Petitioner had at least one extramarital affair. Id. at 766; Albrecht II, 720 A.2d at 702. The evidence at trial revealed that this pattern of abuse continued through the night before the fire, when Petitioner’s son ran to the neighbors’ house and related that his father was abusing his mother and threatening to burn the house down. Al-brecht II, 720 A.2d at 704-705; Answer at 6, citing T.T. 7/30/80. The police were called and, upon investigation, found evidence of a recent fight. Albrecht I, 511 A.2d at 768; Answer at 6, citing T.T. 7/31/80. When questioned, Petitioner’s wife told the police that he had threatened to burn her dress. Albrecht I, 511 A.2d at 768. Petitioner eventually demanded that the police leave. Answer at 6, citing T.T. 7/31/80. The Commonwealth also introduced evidence regarding prior threats by Petitioner to burn down his house or to severely injure his wife. Albrecht I, 511 A.2d at 768. Finally, the Commonwealth introduced evidence that Petitioner showed little remorse following the fire and the deaths of his wife, mother and daughter. Answer at 6, citing T.T. 7/29/80. On June 23, 1986, the Pennsylvania Supreme Court affirmed Petitioner’s conviction and death sentence on direct appeal. Albrecht I, 511 A.2d at 764. The United States Supreme Court declined to issue a writ of certiorari on March 30, 1987. Albrecht v. Pennsylvania, 480 U.S. 951, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987). Thereafter, Petitioner filed a pro se petition for post-conviction relief (“PCRA petition”). Commonwealth v. Albrecht, B.C.C.C. No.1980-00408 (docket sheet). On July 13, 1991, Petitioner, by appointed counsel, filed an amended PCRA petition seeking discovery, funds for investigation and expert witnesses, and an evidentiary hearing. Commonwealth v. Albrecht, B.C.C.C. No.1980-00408 (docket sheet). Petitioner’s request for funds was denied, and the Pennsylvania Supreme Court denied his Petition for Extraordinary Review. Petition for Writ of Habeas Corpus (“Petition”) at ¶ 4. Petitioner’s amended PCRA petition was dismissed on January 24,1996. Petition at ¶ 8. He appealed, and the Pennsylvania Supreme Court affirmed on November 23, 1998. Albrecht II, 720 A.2d at 710. On March 24, 1999, Petitioner filed the present Petition for Writ of Habeas Corpus, alleging fourteen grounds for relief. On April 28, 1999, this Court issued an Order staying Petitioner’s execution until further order of Court. II. Waiver and Procedural Bar The parties agree that Counts III, IV, XI, XII, and part of Count I were addressed by the Pennsylvania Supreme Court on the merits and thus not waived by Petitioner. However, Respondent avers that Petitioner’s claims in Counts II, V, VI, VII, VIII, IX, and X were waived at the state level and are therefore procedurally barred from review by this Court. Because the Supreme Court of Pennsylvania changed its long-standing practice of “relaxed waiver” on Petitioner’s PCRA appeal, this Petition presents unique issues of waiver and procedural bar. Respondent argues that Counts II, V, VI, VII, VIII, IX, and X were reviewed by the Pennsylvania Supreme Court and were found to have been waived by the failure to raise them, either on direct appeal or on PCRA review. It is not clear the extent to which Counts XIII, XIV, and the remainder of Count I were presented to the Pennsylvania Supreme Court, but the Supreme Court did not consider them either on direct appeal or on PCRA review. The Pennsylvania Supreme Court concluded that the group of claims asserted in Counts II, V, VI, VII, VIII, IX, and X had been waived. Normally, unless Petitioner could show cause for and prejudice from his default at the state level, federal habe-as review would be precluded. Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Doctor v. Walters, 96 F.3d 675 (3d Cir.1996). Petitioner urges the Court not to treat any of the claims he raised at any level of direct or PCRA appeal as defaulted. He notes that from 1978 until the decision in his PCRA appeal, the Supreme Court of Pennsylvania recognized a “duty to transcend procedural rules” in capital cases. Commonwealth v. McKenna, 476 Pa. 428, 383 A.2d 174, 181 (1978). This perceived duty led to the doctrine of “relaxed waiver” in death penalty cases, which amounted to a “practice of reaching the merits of claims in PCRA petitions in capital cases regardless of the failure of the petition to meet the appropriate procedural criteria.” Banks v. Horn, 126 F.3d 206, 214 (3d Cir.1997). The Court often heard arguments that had not been raised in any of the lower court proceedings, or that were raised at one level, but not at all required levels. Jacobs v. Horn, 129 F.Supp.2d 390, 398 (M.D.Pa.2001). This practice changed in 1998, when the Supreme Court issued its decision in this case on Petitioner’s PCRA appeal. Al-brecht II, 720 A.2d at 700 (“While it has been our ‘practice’ to decline to apply ordinary waiver principles in capital cases, we will no longer do so in PCRA appeals.”) (internal citations omitted). The Supreme Court found that Petitioner had waived a number of potential arguments by not raising them earlier. These claims were not addressed on the merits, but instead were dismissed on procedural grounds. Accordingly, the first question before this Court is whether the Pennsylvania Supreme Court’s decision to dismiss those claims renders them immune to examination on federal habeas corpus. Normally, out of concern for federalism and comity, a District Court will not hear argument on issues raised in a habeas petition that were procedurally defaulted at the state level. Lambrix v. Singletary, 520 U.S. 518, 523, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997); Bronshtein v. Horn, 2001 WL 767593, *4 (E.D.Pa.2001). “[A] habeas petitioner who has failed to meet the State’s procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance.... The independent and adequate state ground doctrine ensures that the States’ interest in correcting their own mistakes is respected in all federal habeas cases.” Coleman, 501 U.S. at 732, 111 S.Ct. 2546 (1991). This doctrine applies equally to procedural and substantive matters, meaning that it prevents federal courts from hearing the merits of cases where the petitioner failed to comply with a state procedural rule. Bronshtein, 2001 WL 767593 at *4, citing Wainwright v. Sykes, 433 U.S. 72, 82, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Nonetheless, a habeas court will review questions of federal law decided by state courts so long as the state’s decision does not rest on independent and adequate state grounds. Szuchon v. Lehman, 273 F.3d 299, 325 (3d Cir.2001) (“A habeas court ‘will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment’ ”), quoting Coleman, 501 U.S. at 729, 111 S.Ct. 2546. Here, the Pennsylvania Supreme Court rested its decisions upon Pennsylvania law. Albrecht II, 720 A.2d at 700, citing 42 Pa. Cons.Stat. § 9543(a)(3); see generally Szuchon, 273 F.3d at 325; Bronshtein, 2001 WL 767593, at *4. However, a careful review of the facts demonstrates that the procedural grounds upon which the Pennsylvania Supreme Court relied are not adequate. “A procedural rule is adequate only if it is firmly established, readily ascertainable, and regularly followed.” Szuchon, 273 F.3d at 325, citing Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991); Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). This standard is met where “(1) the state procedural rule speaks in unmistakable terms; (2) all 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 683-84. See also Dugger v. Adams, 489 U.S. 401, 410 n. 6, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989) (a state must demonstrate that in the “vast majority of cases” the rule is applied in a “consistent and regular” manner); Hathorn v. Lovorn, 457 U.S. 255, 263, 102 S.Ct. 2421, 72 L.Ed.2d 824 (1982) (a state rule should be applied “evenhandedly to all similar claims”). The first two conditions are clearly met in this case. The state rule speaks in absolute terms and the Pennsylvania Supreme Court denied the petition on the grounds of procedural bar, which is considered a determination on the merits. See Harris v. Reed, 489 U.S. at 261-63, 109 S.Ct. 1038. However, “[t]he Court of Appeals for the Third Circuit has [held] that the relevant moment for determining the adequacy of a state rule is ‘not ... when the [Pennsylvania court] relied on it, but rather ... the date of the waiver that allegedly occurred.” Bronshtein, 2001 WL 767593 at *5, quoting Doctor, 96 F.3d at 684. See also Reynolds v. Ellingsworth, 843 F.2d 712, 725 (3d Cir.1988) (“procedural default is determined by the waiver law in effect at the time of the asserted waiver”) (internal quotations omitted). Thus, in cases where the waiver upon which the Pennsylvania Supreme Court based its decision predated the decision in Albrecht II, that Court’s decision is not adequate to establish a procedural bar to federal examination of those claims on habeas review. Szuchon, 273 F.3d at 327 (“[S]ueh a precedent setting use of a procedural bar indicates that the bar was not firmly established, readily ascertainable, and regularly followed at the time of the purported defaults.”). Because Petitioner’s was the first capital case since 1978 in which the Supreme Court enforced the PCRA waiver rules, it follows that the Supreme Court’s consistent application of the PCRA waiver rules did not begin until after Petitioner had waived his arguments. Accordingly, this Court is not barred from considering Petitioner’s claims on the merits despite the Pennsylvania Supreme Court’s finding that they were procedurally waived. Thus, the Court will address Counts II, V, VI, VII, VIII, IX, and X on the merits. Because there is no decision of the Pennsylvania Supreme Court to which this court must defer for legal conclusions, the Court will review these claims de novo. Appel v. Horn, 250 F.3d 203, 210 (3d Cir.2001). In Count I, Petitioner complains both that he is actually innocent and that the Pennsylvania courts wrongly denied him access to the funds necessary to hire an expert to prove this contention. The Commonwealth argues that the substantive aspect of Count I, that Petitioner is actually innocent, was waived, and that only Petitioner’s claim that he should have been given funds to hire an expert was addressed on the merits by the Pennsylvania Supreme Court. However, the Court finds that no waiver occurred. Petitioner brought before the Pennsylvania Supreme Court the limited issue of whether he was improperly denied funds to retain a fire expert. Generally, this would operate as a waiver to the broader claim of actual innocence, as a Petitioner must fairly present his claims to the highest state court for its review. Whitney v. Horn, 280 F.3d 240, 250 (3d Cir.2002), citing O’Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). However, the procedural bar will not be enforced where Petitioner can demonstrate cause and prejudice. Coleman, 501 U.S. at 750, 111 S.Ct. 2546 (“In all eases in which a state prisoner has defaulted his federal claims in state court... federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice”). Here, Petitioner could not reasonably prove his case without expert testimony. Thus, by refusing Petitioner the funds to hire such an expert, the Pennsylvania courts prevented him from substantiating his claim that the Commonwealth’s fire science evidence was erroneous. This Court is unwilling to enforce the “catch-22” of defaulting Petitioner for failing to make the case that an expert is needed while denying the funds necessary to hire one. Petitioner cannot reasonably be said to have waived his substantive argument simply because the state courts refused him the means of making it. Having eventually acquired the services of a competent expert and having demonstrated that fire science has indeed changed as he alleges, Petitioner will not be procedurally barred on this question. Accordingly, the Court will review Count I on the merits, de novo. III. Legal Standard A. Federal Court Review of State Court Decisions “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.” 28 U.S.C. § 2254(d). In Williams v. Taylor, 529 U.S. 362, 404-05, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Court explained the two-part analysis set forth in 28 U.S.C. § 2254(d). Under the first part of the review, the federal habeas court must determine whether the state court decision was “contrary to ... clearly established federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d). A state court decision can be contrary to Supreme Court precedent in two ways: (1) “if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law,” or (2) “if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to that reached by [the Supreme Court].” Williams, 529 U.S. at 404-05,120 S.Ct. 1495. A state court decision involves an unreasonable application of Supreme Court precedent: (1) “if the state court identifies the correct governing legal rule from the Court’s cases but unreasonably applies it to the facts of the particular state prisoner’s case,” or (2) “if the state court either unreasonably extends a legal principle ... to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams, 529 U.S. at 407-08, 120 S.Ct. 1495. The Court’s role is not akin to that of an appellate court, reviewing errors. Bousley v. U.S., 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (“[h]abeas review is an extraordinary remedy and ‘will not be allowed to do service for an appeal,’ ” quoting Reed v. Farley, 512 U.S. 339, 354, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994) and Sunal v. Large, 332 U.S. 174, 178, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947)); 39 Am.Jur.2d Habeas Corpus and Postconviction Remedies § 6. Likewise, the Court’s purpose “is not to determine guilt or innocence of prisoner of crime charged.” Id. This was made especially clear by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). See Bell v. Cone, 535 U.S. 685, 693, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (“[AEDPA] modified a federal habe-as court’s role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given effect to the extent possible under law”). Because this is not an appellate review of the Pennsylvania Supreme Court’s decision, the Court must defer to the findings of fact reached by that Court whenever they are supported by probative evidence. Wright v. West, 505 U.S. 277, 302, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992); Marshall v. Lonberger, 459 U.S. 422, 432, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983); Riley v. Taylor, 277 F.3d 261, 285 (3d Cir.2001). This deference is not extended to questions of federal law or to mixed questions of federal law and fact. Thompson v. Keohane, 516 U.S. 99, 109-111, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995). With respect to these latter questions, the Court may issue a writ of habeas corpus only if the Pennsylvania Supreme Court’s decision is contrary to or an unreasonable application of federal law as determined by United States Supreme Court precedent. 28 U.S.C. § 2254(d); Mitchell v. Esparza, 540 U.S. 12, 124 S.Ct. 7, 10, 157 L.Ed.2d 263 (2003); Williams v. Taylor, 529 U.S. 362, 379, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Everett v. Beard, 290 F.3d 500, 507-08 (3d Cir.2002). B. Ineffective Assistance of Counsel The standard for ineffective assistance claims was established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, a Petitioner claiming ineffective assistance of counsel must demonstrate (1) that counsel’s performance was deficient, i.e., falling below an objective standard of reasonableness, and (2) that counsel’s deficient performance prejudiced his client. Id., 466 U.S. at 689-92, 104 S.Ct. 2052. In examining the question of deficiency, “[jludicial scrutiny of an attorney’s performance must be highly deferential.” Id., 466 U.S. at 689, 104 S.Ct. 2052: A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ Id. “[I]n considering claims of ineffective assistance of counsel, ‘[w]e address not what is prudent or appropriate, but only what is constitutionally compelled.’ ” Burger v. Kemp, 483 U.S. 776, 794, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987), citing U.S. v. Cronic, 466 U.S. 648 665, n. 38, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). “To establish deficient performance, a petitioner must demonstrate that counsel’s representation ‘fell below an objective standard for reasonableness.’ ” Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003), quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Reasonableness is considered within the context of “prevailing professional norms.” Wiggins, 123 S.Ct. at 2536, quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052. However, even constitutionally deficient performance by counsel does not mandate the issuance of a writ of habeas corpus unless prejudice is shown. In order to demonstrate prejudice, the defendant must also show that counsel’s alleged errors “were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. This in turn requires a showing that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694,104 S.Ct. 2052. “It is firmly established that a court must consider the strength of the evidence in deciding whether the Strickland prejudice prong has been satisfied. In Strickland, the Supreme Court emphasized that a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.” Buehl v. Vaughn, 166 F.3d 163, 173 (3d Cir.1999). The Pennsylvania Supreme Court’s determination as to whether there was prejudice from counsel’s deficiency is a decision on a mixed question of fact and law to which the Court must defer unless it is contrary to or an unreasonable application of United States Supreme Court precedent. 28 U.S.C. § 2254(d); Kane v. Kyler, 201 F.Supp.2d 392, 397, n. 9 (E.D.Pa.2001). IV. Claims of Error During the Guilt Phase Petitioner’s complaints can be divided into two categories: those alleging error at the guilt phase and those alleging error at the sentencing phase. The Court will address the former first, taking the Counts in order and then cumulatively. A. Count I In Count I, Petitioner argues that new developments in fire science prove his claim of actual innocence. Petition at ¶¶ 15-16. Particularly, he avers that the fire science evidence presented at his trial, introduced to show that arson could be the only cause of the fire, has since been shown to be inaccurate. Legal Standard It is axiomatic that the execution of an innocent person is constitutionally intolerable. According to Herrera v. Collins, 506 U.S. 390, 417, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993): [I]n a capital case a truly persuasive demonstration of “actual innocence” made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim. But because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry eases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high. Although Herrera does not specify the burden of proof that a petitioner must carry in order to meet the threshold showing, id. at 421, 113 S.Ct. 853 (O’Connor, J., concurring), it was suggested that “petitioner would at the very least be required to show that based on proffered newly discovered evidence and the entire record before the jury that convicted him, ‘no rational trier of fact could [find] proof of guilt beyond a reasonable doubt.’ ” Id. at 429, 113 S.Ct. 853 (White, J., concurring in the judgment) (citing Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). “If the petitioner asserts his actual innocence of the underlying crime, he must show ‘it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.’ ” Calderon v. Thompson, 523 U.S. 538, 559, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998), quoting Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); U.S. v. Garth, 188 F.3d 99 (3d Cir.1999); Douglas v. Beard, 2002 WL 550474 (E.D.Pa.2002); Woods v. Brennan, 2001 WL 1428343 (E.D.Pa.2001). “In other words, the habeas petitioner must show that there probably would be a reasonable doubt.” Herrera, 113 S.Ct. at 882 (Blackmun, J., dissenting). In order to meet this burden, the new evidence must foreclose the possibility of guilt, or at least of a guilty verdict. Woods, 2001 WL 1428343 at *3. Notably, the Court is not required to weigh the evidence: [T]his inquiry does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Herrera, 506 U.S. at 401-02, 113 S.Ct. 853, quoting Jackson v. Virginia, 443 U.S. at 318-19, 99 S.Ct. 2781. Moreover, “[this] exception is concerned with actual as compared to legal innocence.” Woods, 2001 WL 1428343 at *2, quoting Calderon, 523 U.S. at 559, 118 S.Ct. 1489. “ ‘Actual innocence’ means factual innocence, not mere legal insufficiency.” Garth, 188 F.3d at 107. “Simply stated, ‘actual innocence’ means that the person did not commit the crime.’” Id., citing Johnson v. Hargett, 978 F.2d 855, 860 (5th Cir.1992). The Supreme Court has often emphasized the narrow scope of the exception. See, e.g. Calderon, 523 U.S. at 559, 118 S.Ct. 1489. “To be credible, a claim of actual innocence must be based on reliable evidence not presented at trial.” Id. (internal quotations omitted). The New Evidence Petitioner has convincingly shown that the fire science evidence presented by the Commonwealth at his trial has since been discredited. At the evidentiary hearing before this Court on March 24, 2003, Petitioner called a qualified expert in fire science investigation. Transcript of Evi-dentiary Hearing, March 24, 2003 (“E.H.T. 3/24”), 25. He presented evidence that modern fire science considers the Commonwealth’s trial evidence to be an unreliable basis upon which to conclude that a liquid accelerant necessarily was involved and that the fire could have been caused only by arson. In short, Petitioner’s expert testified that the fire science evidence in this ease was as consistent with an accidental fire — started in an upholstered chair in the living room as claimed by Petitioner — as with an accelerant fire intentionally started in either the kitchen or the living room. E.H.T. 3/24, 83. The Commonwealth offered no rebuttal witnesses. Accordingly, having heard and considered the testimony of Petitioner’s expert, the Court finds it credible and accepts that the fire could have been caused either intentionally or by accident. Analysis The question, however, is whether this new evidence is legally sufficient to prove that Petitioner is actually innocent. The Court concludes that it is not. The critical fact in the Court’s analysis is that the newly-discovered evidence demonstrates only that the 'fire might have been accidental; it does not foreclose the possibility that the fire was started by an arsonist using a liquid accelerant. E.H.T. 3/24, 84 and 94-96. Absent prosecutorial misconduct, which is not alleged, the only issue is whether the new evidence is sufficient to conclude that “no rational trier of fact could [find] proof of guilt beyond a reasonable doubt.” Herrera, 506 U.S. at 429, 113 S.Ct. 853. Here, sufficient circumstantial evidence exists to support a rational inference that the fire was caused by arson and that Petitioner’s conduct was deliberate. First, there was evidence that Petitioner had the means to commit the arson. A gas can was found in the trunk of his car. His fingerprints were on the can, which was covered in soot. Based on this evidence, a rational trier of fact could conclude that Petitioner intentionally started the fire with the gasoline, getting soot and his fingerprints on the gas can, then carried it out of the burning house and put it in the trunk of his car. Second, from the evidence that Petitioner repeatedly abused his wife just before her death, a reasonable juror could conclude that he intended to harm her. There was also evidence that Petitioner had threatened to burn down the house on several previous occasions and on the night in question. Answer at 5-6 (citing trial testimony of Larry Wimmer, John Wheeler, Valerie .Cullingford, and Carol Kuhns). Furthermore, the evidence demonstrated that Petitioner had been drinking on the night before the fire, which would allow a rational juror to infer that he might have taken his violent behavior further than he had in the past. From this evidence, a reasonable juror could have inferred that Petitioner purposefully set the fire. If a chain of reasonable inferences exists that would allow a rational trier of fact to conclude beyond a reasonable doubt that Petitioner was guilty of the crime of which he was convicted, actual innocence has not been shown. Garth, 188 F.3d at 107 (“Simply stated, ‘actual innocence’ means that the person did not commit the crime”). The test is not whether the Court would have found Petitioner guilty or whether the Court believes that Petitioner is guilty beyond a reasonable doubt. Jackson, 443 U.S. at 320, n. 13, 99 S.Ct. 2781 (“[T]he standard announced ... does not permit a court to make its own subjective determination of guilt or innocence”); Herrera, 506 U.S. at 400, 113 S.Ct. 853 (“[F]ederal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution-not to correct errors of fact”). Absent more definitive proof that the fire was of accidental origin, there was sufficient evidence for a rational juror to conclude that the fire was caused by arson and that Petitioner was the arsonist. Accordingly, Petitioner has not demonstrated actual innocence and the claims asserted in Count I must be denied. B. Count II Count II of the habeas petition claims a denial of due process, specifically denial of the right to a meaningful appeal, based on the absence of transcripts for significant portions of the trial. Only a small portion of the juror voir dire was transcribed, the testimony of seven defense character witnesses was not transcribed at all, and the direct examination of the defense expert was not transcribed. Thus, Petitioner argues that he was unable meaningfully to perfect an appeal based on potentially improper questions or rulings in those portions of the trial. The Pennsylvania Supreme Court held that these claims had been waived by the failure to raise them in the earlier stages of PCRA appeal. Albrecht II, 720 A.2d at 701. Because that Court did not address the claims on the merits, this Court’s review is de novo. Appel, 250 F.3d at 210. A more complete record, particularly with respect to the fire science testimony, undeniably would have been preferable. The law is clear, however, that Petitioner bears the burden of demonstrating harm from the missing transcripts. The Court cannot award relief on the suggestion that the transcript might show prejudice. “A criminal defendant must first show a ‘colorable need’ for a complete transcript” before the state must respond. Karabin v. Petsock, 758 F.2d 966, 969 (3d Cir.1985), quoting Mayer v. City of Chicago, 404 U.S. 189, 195, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971). “To warrant reversal, the defendant must further make a specific showing of prejudice as a result of the failure to produce the entire transcript.” Kindler v. Horn, 291 F.Supp.2d 323 (E.D.Pa.2003), citing U.S. v. Sierra, 981 F.2d 123, 125 (3d Cir.1992). Petitioner has also presented evidence to support his allegation that the Commonwealth attorney engaged in cross-examination of Petitioner’s character witnesses that might not have been proper. However, although Petitioner directs the Court’s attention to several possible violations that might have occurred, both during voir dire and during the trial, he does not aver that any actually did occur. “Petitioner’s burden could have been met by introducing affidavits by petitioner, trial counsel, or both, of specific acts of prosecutorial misconduct or ineffective assistance that they believe would be reflected if a transcript existed.” Sulecki v. Zimmerman, 1988 WL 71398 at *1, 1988 U.S. Dist. LEXIS 6421 (E.D.Pa.1988). No such affidavits were introduced with respect to any of the aforementioned allegations. Absent evidence of this type, the Court cannot conclude that inappropriate questions actually were asked. The Court recognizes the risk of creating a “catch-22” whereby the absence of the transcripts precludes any attempt to obtain reversal. However, the alternative — overturning a jury verdict twice affirmed by the Pennsylvania Supreme Court without a supported allegation of impropriety — defies both common sense and the “colorable need” standard established in Mayer and Karabin. Accordingly, the petition must be denied with respect to the claims asserted in Count II. C. Count III Count III alleges that the method of juror recruitment resulted in an unconstitutional jury panel. This allegation was addressed on the merits by the Pennsylvania Supreme Court on Petitioner’s direct appeal, where that Court held that the methods used by the sheriffs at the trial court’s direction were proper. Albrecht I, 511 A.2d at 771. The Sixth Amendment does not mandate that every jury panel represent a fair cross-section of the community, but only that the jury venire does. See United States v. Guy, 924 F.2d 702 (7th Cir.1991) (Defendant’s observation that no African-Americans were on jury panel insufficient to establish systematic exclusion); United States v. Diaz, 1993 WL 85764 (E.D.Pa.1993) (finding that “the defendant’s sole observation [that no Hispanics were on the jury panel] fails to show a systematic exclusion”). “In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979); see also Henry v. Horn, 218 F.Supp.2d 671, 691-92 (E.D.Pa. 2002) (“Initially, the defendant must demonstrate the percentage of the community made up of the group alleged to be underrepresented, for this is the conceptual benchmark for the Sixth Amendment fair-cross-section requirement”). The Supreme Court has not clarified the meaning of the term “distinctive” in the context of the Duren analysis. Henry, 218 F.Supp.2d at 694. It is clear that shared ideas alone are not enough. U.S. v. Salamone, 800 F.2d 1216, 1220 (3d Cir.1986). Although the Third Circuit has not issued a comprehensive test to determine distinctiveness, courts in at least four Circuits, including this one, have applied the Eleventh Circuit’s three-part test for distinctiveness: (1) that the group is defined and limited by some factor (i.e., that the group has a definite composition such as race or sex); (2) that a common thread or basic similarity in attitude, ideas, or experience runs through the group; and (3) that there is a community of interests among members of the group such that the group’s interest cannot be adequately represented if the group is excluded from the jury selection process. See Willis v. Zant, 720 F.2d 1212, 1220 (11th Cir.1983); see also U.S. v. Fletcher, 965 F.2d 781, 782 (9th Cir.1992); Ford v. Seabold, 841 F.2d 677, 682 (6th Cir.1988); Barber v. Ponte, 772 F.2d 982, 987 (1st Cir.1985); Henry, 218 F.Supp.2d at 695. Accordingly, the Court will apply that standard in this case. Petitioner complains that the sheriffs deputies went to various area shopping malls and gave jury summonses to people they found there. Petition at ¶ 58. Some allegedly gave them principally to people that they knew. Id. at ¶ 59. Petitioner claims that presence at a particular mall or being an acquaintance of a deputy became de facto qualifications for the jury panel. Id. at ¶ 62. He argues that this, in turn, excluded two basic groups: (1) races other than those of the deputies and (2) those who were not at the malls on that day. This argument is legally insufficient to merit reversal. With respect to his race claim, Petitioner has not provided even the most basic facts showing how many of the summoned jurors were of minority background and how that number compared to the population from which the jury pool was drawn. This Court cannot reasonably determine whether there was a racially disparate impact of the method of jury selection absent this information. Furthermore, Petitioner’s speculative argument that some jurors may have been excluded on racial or other prohibited grounds or that jurors in general were challenged on prohibited grounds is unsupported by facts and therefore fails. With respect to the claim that individuals who were not shopping on the day in question or who were shopping elsewhere were systematically excluded, the Court turns to the first prong of the Duren analysis, i.e., that the group allegedly excluded be “distinctive.” Petitioner has not attempted to prove that the class of persons defined by not shopping at a particular mall or not knowing a deputy sheriff are defined or limited by any particular factor, that they have common attitudes, ideas, or experiences, or that they share any meaningful community of interest. See Willis, 720 F.2d at 1220. Thus, Petitioner has not even presented prima facie evidence that his panel was unfair, much less that this unfairness was systemic. In light of the foregoing, it cannot be said that the Pennsylvania Supreme Court’s determination that the methods used by the sheriffs’ deputies comported with the Duren standards was contrary to or a misapplication of existing Supreme Court precedent. Accordingly, the Petition must be denied with regard to the claims asserted in Count III. D. Count IV Count IV claims that trial counsel was ineffective for failing to object to evidence of prior bad acts. Petitioner avers that the Commonwealth introduced evidence that had been specifically excluded by a pre-trial ruling and evidence of a prior conviction that was nearly eighteen years old. On PCRA appeal, the Pennsylvania Supreme Court denied these claims, holding that Petitioner had not shown sufficient prejudice to merit reversal. Albrecht II, 720 A.2d at 703. It also held that “the evidence in question was not of such a nature that its admission would result in the denial of a fair trial.” Id. This Court’s review is limited to the question of whether the Pennsylvania Supreme Court’s decision was contrary to or an unreasonable application of United States Supreme Court precedent. “The erroneous admission of evidence that is relevant, but excessively inflammatory, might rise to the level of a constitutional violation.” Lesko v. Owens, 881 F.2d 44, 51 (3d Cir.1989). Where the evidence “so infuse[s] the trial with unfairness as to deny due process of law,” the verdict must be overturned. Estelle v. McGuire, 502 U.S. 62, 75, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991), citing Lisenba v. California, 314 U.S. 219, 228, 62 S.Ct. 280, 86 L.Ed. 166 (1941); Dowling v. U.S., 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990). However, “Judges are not free, in defining ‘due process,’ to impose on law enforcement officials [their] personal and private notions of fairness and to disregard the limits that bind judges in their judicial function. [They] are to determine only whether the action complained of ... violates those fundamental conceptions of justice which lie at the base of our civil and political institutions, and which define the community’s sense of fair play and decency.” Dowling, 493 U.S. at 353, 110 S.Ct. 668 (internal citations and quotations omitted). Furthermore, in deciding whether Petitioner was denied due process of law, this Court must consider the evidence in light of any limiting instructions given at trial. Id. Petitioner contends that the prosecutor violated the trial court’s order by examining him on alleged acts of infidelity that occurred more than seven months before the death of his wife. Defense counsel timely objected, although some allegations of infidelity had already been heard. Petition at ¶ 74-75. The trial judge denied a request for a mistrial, but instructed the jury to disregard the questions. Petitioner has presented no evidence that the jury disobeyed this instruction or that the evidence of remote acts of infidelity was a significant part of the Commonwealth’s case. Furthermore, even if the jury disregarded the limiting instruction, it is difficult to perceive how the evidence of remote acts of infidelity could be so inflammatory as to deny due process when the jury had before it evidence of acts of infidelity within months of the fire. See Albrecht II, 720 A.2d at 703. Accordingly, the Court agrees with the Supreme Court of Pennsylvania that no prejudice accrued from the jury’s limited exposure to this evidence. Petitioner next objects to the Commonwealth’s cross-examination, in which the prosecutor questioned him about instances of alleged spousal abuse that occurred more than seven months before his wife’s death. The Pennsylvania Supreme Court, however, noted that these questions were put to Petitioner in response to his assertion that he had hit his wife only four or five times and only within a few months of the fire. Albrecht II, 720 A.2d at 703. The trial court had ruled out admission of remote instances of spousal abuse as improper evidence of bad character and prior bad acts. However, once Petitioner denied having beaten his wife until shortly before the fire, the Commonwealth was entitled to impeach his assertion. Thus, as the Pennsylvania Supreme Court held, trial counsel could not have expected to succeed on an objection, id., and therefore counsel was not ineffective for failing to object. Finally, in light of the wealth of evidence of serious abuse in the months prior to Petitioner’s wife’s death, evidence of remote acts of spousal abuse would not be sufficiently prejudicial to merit reversal. Accordingly, the failure to object was not ineffective assistance and the admission of this evidence was not a due process violation. Finally, Petitioner claims that the Commonwealth improperly challenged the opinions of his character witnesses by inquiring into their knowledge of his 1962 assault conviction. The Pennsylvania Supreme Court addressed this question on PCRA appeal, and held that under Pennsylvania law the evidence of the older conviction was admissible to impeach a reputation for peacefulness and that its admission was not so prejudicial as to violate due process. Albrecht II, 720 A.2d at 702, n. 10, and 703. Because this Court’s review is limited to matters of federal constitutional law, the only question is whether the Pennsylvania Supreme Court’s decision on the question of due process was contrary to or an unreasonable application of United States Supreme Court precedent. The Supreme Court has never directly addressed this question and this Court finds it highly unlikely that the mere allegation that Petitioner had some undefined criminal record substantially swayed the jurors in this case. Therefore, this Court defers to the finding of the Pennsylvania Supreme Court that Petitioner’s due process rights were not violated and his trial counsel was not ineffective for failing to object. Whether taken separately or together, the admission of the aforementioned evidence did not render Petitioner’s trial unfair or violate the community’s fundamental conceptions of justice. Accordingly, the claims asserted in Count IV must be denied. E. Count V Petitioner’s fifth claim is that his trial counsel was ineffective for failing to request a limiting instruction with respect to the Commonwealth’s evidence of spousal abuse, both recent and remote. On direct appeal, the Supreme Court of Pennsylvania held that “evidence regarding ill-will toward a victim in a homicide case is admissible” and that “when the deceased victim’s spouse is the defendant, evidence concerning the marital relationship will be admissible for the purpose of illustrating ill-will, motive, or malice. Evidence regarding hostility and strain in a marriage is also admissible.” Albrecht I, 511 A.2d at 772 (internal citations omitted). On PCRA appeal, Petitioner raised the issue of ineffectiveness of counsel, alleging constitutional error in counsel’s failure to request a limiting instruction explaining the purposes for which the evidence of abuse could be used. In addressing this issue, the Pennsylvania Supreme Court, apparently misunderstanding Petitioner’s claim, declined to revisit the question of admissibility. Albrecht II, 720 A.2d at 702-03. The fact that evidence is admissible, however, does not necessarily eliminate the need for a limiting instruction. Where prejudicial evidence is admissible for some purposes, but not for others, such an instruction would be appropriate. See Commomvealth v. Billa, 521 Pa. 168, 555 A.2d 835, 841 (1989). Thus, the Supreme Court’s holding that the evidence was admissible does not decide the question whether a limiting instruction should have been requested by counsel. See 28 U.S.C. § 2254(d). Because there are no findings with respect to this particular question, this Court’s review is de novo. Appel, 250 F.3d at 210. Trial counsel is not constitutionally required to request a limiting instruction any time that one could or would be given. Buehl, 166 F.3d at 170 (“In some circumstances, such an instruction may be strongly advisable; in others, counsel may reasonably conclude that it is strategically preferable to omit such a request since the instruction might have the undesired effect of highlighting the other crimes evidence”). However, the Court cannot find any valid strategic reason that trial counsel could have chosen not to request a limiting instruction in this case. The evidence of abuse was not briefly or fleetingly presented, but rather was a substantial portion of the Commonwealth’s case. The Commonwealth’s closing focused on the evidence of abuse, reviewed the violation of the state court order, and invited the jury to “carry it to its logical conclusion” and decide “what type of man is A1 Albrecht.” Petition at ¶ 99 (quoting the trial transcript from August 7, 1980). Once the Commonwealth had so forcefully focused on the prior bad acts, the danger of highlighting them had passed. Instead, in the absence of a limiting instruction, the jury was permitted to make the very character-propensity inference that the Pennsylvania Rules of Evidence prohibit and the prosecutor all but invited. See Pa. R. of Evid. 404(b) and Petition at ¶ 99. In Billa, supra, 555 A.2d at 841-43, the Pennsylvania Supreme Court held that counsel was deficient when he failed to request an appropriate limiting instruction relating to inflammatory evidence of prior bad acts. Where “it is apparent on this record that appellant’s underlying claim had arguable merit,” the Court held, “the court’s failure to give such an instruction, upon request, would have been reversible error.” 555 A.2d at 842. The court found “counsel to have been constitutionally ineffective in failing to request an appropriate limiting instruction.” 555 A.2d at 843. This Court agrees with the logic of Billa, and holds that the failure to request a limiting instruction was deficient assistance of counsel. In order to find counsel ineffective, the Court must also find that Petitioner was prejudiced by this deficiency. There is no way of knowing whether the jury made the improper character-propensity inference. However, had the jury considered the prior bad acts evidence only for the permissible purpose of demonstrating ill will, malice, or motive, a reasonable juror could still have found Petitioner guilty. Thus, Petitioner has presented the Court with no reason to believe that the jury made a character-propensity inference or would have to do so. The Court’s confidence in the jury’s verdict is unshaken. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Accordingly, the claims asserted in Count V of the Petition must be denied. F. Count VI Petitioner alleges that the admission of hearsay statements against him violated his rights under the Confrontation Clause of the Sixth Amendment. Petition at ¶ 109. Alternatively, he alleges that these statements were inadmissible hearsay under state law and that his attorney’s failure to object to them constitutes ineffective assistance of counsel. Petition at ¶ 109 and ¶ 235. Legal Standard “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const., Amend. VI. Admission of hearsay statements against a criminal defendant violates the Confrontation Clause unless the statement is admitted pursuant to a “firmly rooted hearsay exception” or exhibits “particularized guarantees of trustworthiness.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Where a declarant testifies at trial, the Confrontation Clause generally does not apply to statements purportedly made by that declarant, even if they were introduced into evidence prior to declarant’s testimony. See California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). However, if these statements are also inadmissible under the state rules of evidence, the failure to object to them can constitute ineffective assistance of counsel if their admission was prejudicial to the defendant. See Carpenter v. Vaughn, 296 F.3d 138, 159 (3d Cir. 2002) (“the failure of ... trial counsel to object based on state law constituted ineffective assistance of counsel.” The Circuit even emphasized that its “holding is not based on any other federal constitutional right”). A state court’s determination of prejudice is a decision on a mixed question of fact and law to which the Court must defer on habeas review unless it is contrary to or an unreasonable application of United States Supreme Court precedent. 28 U.S.C. § 2254(d); Kane v. Kyler, 201 F.Supp.2d at 397, n. 9. Statements by Petitioner’s Wife to Her Physician, Her Attorney, and Her Neighbor At trial, numerous statements made by Petitioner’s wife to her physician, her attorney, and her neighbor were admitted to show the pattern of abuse. On direct appeal, the Pennsylvania Supreme Court held that these conversations were admissible under the hearsay exception for statements showing a course of conduct. Albrecht I, 511 A.2d at 776, citing Commonwealth v. Cruz, 489 Pa. 559, 414 A.2d 1082 (1980). Because the Court finds that the statements had particularized indicia of reliability, it need not reach the issue of whether this exception is firmly rooted. There is overwhelming evidence that Petitioner abused his wife. Numerous witnesses, including her physician, testified to the physical manifestations of abuse, including bruising and cigarette burns. Answer at 3-5. Petitioner’s son stated that his father hit his mother on the night before the fire. Petitioner’s Post-Hearing Memorandum of Law, Exhibit 1, at 27. Police reports from the night before the fire suggest a domestic disturbance. Even standing alone, the restraining order entered against Petitioner in his wife’s Protection from Abuse Act case represents a judicial finding that abuse was occurring. Furthermore, the Petition does not contest the fact that Petitioner abused his wife. See Petition at ¶ 122; Albrecht II, 720 A.2d at 703. Accordingly, there can be no doubt that Petitioner abused his wife on multiple occasions. This imbues the statements made by his wife to her physician, her attorney, and her neighbor with indicia of trustworthiness. Particularly with respect to the conversation with her physician, the context of the statements also indicates reliability. The theory that Petitioner’s wife was falsely complaining of abuse to her physician, her attorney, and her close friends while the abuse was admittedly occurring strains credulity. Accordingly, the Court finds that the statements admitted had particularized guarantees of trustworthiness sufficient to satisfy the standard set forth in Roberts. Since the Pennsylvania Supreme Court ruled that the evidence was admissible under Pennsylvania law, counsel cannot be faulted for failing to object to its admission. Furthermore, even assuming arguendo that the admission of the statements violated the Confrontation Clause, at most they were a small part of the Commonwealth’s compelling proof of abuse. Accordingly, admission of these statements was not prejudicial. For both reasons, their admission was not a violation of the Confrontation Clause and the claims in Count VI based upon them must be denied. Statements by Petitioner’s Wife to Her Acquaintances Petitioner also challenges the testimony of two of his wife’s acquaintances, who provided additional evidence of abuse. On PCRA appeal, the Pennsylvania Supreme Court rejected this argument, holding that the statements and observations to which these witnesses testified was merely cumulative of the other evidence of abuse and was therefore not prejudicial. Albrecht II, 720 A.2d at 705. As described above, the evidence of abuse was overwhelming and the fact of abuse is not contested by Petitioner. Accordingly, this Court agrees with the determination of the Pennsylvania Supreme Court that no additional prejudice accrued from the admission of these statements and observations and will therefore deny the claims raised in Count VI based on them. Statements by Petitioner’s Son Petitioner claims that the admission of hearsay statements made by his son to their neighbors on the night before the fire was improper. Petitioner’s neighbors testified at trial that on the night before the fire, Petitioner’s son came to their house and told them that Petitioner was beating his wife and threatening to burn the family house down. Over objection, the trial court admitted these statements as excited utterances. See Pa. R. Evid. 803(2). On PCRA appeal, the Supreme Court of Pennsylvania disagreed, finding that the statements were inadmissible hearsay. Albrecht II, 720 A.2d at 704-05. The neighbors’ testimony includes two separate assertions of fact — first that Petitioner was beating his wife and second that Petitioner had threatened to burn down the house. The admission of the first of these does not violate the Confrontation Clause, since it was supported both by the observations of a police officer who went to the house that evening and by the testimony of Petitioner’s son. Furthermore, as noted above, Petitioner’s history of spousal abuse vests the statements with significant indicia of reliability. However, evidence of the alleged threat to burn down the house is not supported by any indicia of reliability. Indeed, it was expressly disavowed by the alleged declarant, who testified that Petitioner threatened to burn his wife’s dress, not the house. The Pennsylvania Supreme Court addressed this claim as a hearsay claim and found that, while the admission of the statement of Petitioner’s son was improper, the error was not prejudicial. See Albrecht II, 720 A.2d at 704-05. Accordingly, it also found that Petitioner’s counsel’s failure to object to it was deficient, but that counsel’s performance was not ineffective since the error was not prejudicial. Albrecht II, 720 A.2d at 705. Although the improper admission of Petitioner’s alleged threat to burn down the house is troubling, the Court is unable to find that, standing alone, it was so prejudicial that the Pennsylvania Supreme Court’s decision is contrary to or an unreasonable application of existing United States Supreme Court precedent. See generally Estelle v. McGuire, 502 U.S. at 75, 112 S.Ct. 475 (only when admission of evidence “so infused the trial with unfairness as to deny due process of law” does its admission violate due process). Petitioner’s son expressly denied making this statement during his testimony at trial. Furthermore, even if the jury credited the neighbors’ version of events, there was ample evidence on which to base a conviction entirely divorced from this alleged threat. See infra, pp. 484-86. Accordingly, the claims in Count VI with respect to this statement will be denied. Conclusion The Court finds that none of the foregoing alleged violations of the Confrontation Clause or alleged instances of ineffective assistance of counsel merits the issuance of a writ of habeas corpus. Accordingly, the claims raised in