CONCURRING AND DISSENTING OPINION BY
OTT, J.:Although I agree with the Majority that most of Luster’s thirteen claims of ineffective assistance of counsel have no merit, I disagree that two of his issues are merit-less and/or constitute harmless error and would grant Luster a new trial. Therefore, I must dissent.
*1054The issues1 upon which I disagree with the Majority are as follows: (1) The PCRA court erred in determining trial counsel was not ineffective for failing to cross-examine Eric Branaugh regarding a prior inconsistent statement to the police regarding a subsequent phone call he received from the decedent, and (2) Appellate counsel was ineffective for failing to challenge the testimony of Appellant’s wife regarding comments that he allegedly made to her following the incident with Ms. Karcher.2
Luster was convicted of , two counts of third-degree murder, regarding the death of Christine Karcher and her unborn child. The Commonwealth’s theory was that Luster was angry with Karcher. He forced her into a car and attempted to take her to her apartment in Carnegie3 so they could address problems in their relationship. In the course of their argument, and while in Luster’s car, Luster physically assaulted Karcher. When she refused to accompany him to Carnegie, knowing she was intoxicated, he forced her from the vehicle. As he left her lying on the side of the road, he ran over her right arm, breaking it. ■ He left her there, unattended. Later, another motorist, who was apparently intoxicated,4 ran over her chest and head as she lay in the road, killing her.
Murder is defined, in relevant part, at 18 Pa.C.S. § 2502, as follows:
(c) Murder of the third degree. — All other kinds of murder shall be murder of the third degree. Murder of the third degree is a felony of the first degree.
18 Pa.C.S. § 2502(c).
The requirements for proving third-degree murder are set forth in case law. “Third degree murder occurs when a person commits a killing which is neither intentional nor committed during the perpetration of a felony, but contains the requisite malice.” Commonwealth v. Kling, 731 A.2d 145, 147 (Pa.Super.1999).
Malice exists where there is a “wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured.” Commonwealth v. Pigg, 391 Pa.Super. 418, 571 A.2d 438, 441 (1990), appeal denied, 525 Pa. 644, 581 A.2d 571 (1990) (quoting Commonwealth v. Drum, 58 Pa. 9, 15 (1868)). Where malice is based on a reckless disregard of consequences, it is not sufficient to show mere recklessness; rather, it must be shown the defendant consciously disregarded an unjustified and extremely high risk that his actions might cause death or serious bodily injury. See Commonwealth v. Scales, 437 Pa.Super. 14, 648 A.2d 1205, 1207 (1994), appeal denied, 540 Pa. 640, 659 A.2d 559 (1995) (regarding third degree murder). A defendant must display a conscious disregard for almost certain death or injury such that it is tantamount to an actual desire to injure or kill; at the *1055very least, the conduct must be such that one could reasonably anticipate death or serious bodily injury would likely and logically result. See [Commonwealth v.] O’Hanlon, supra [539 Pa. 478], 653 A.2d [616] at 618 [(1995)] (regarding aggravated assault).
Id. at 147-148.
Since Luster was not the actual cause of Karcher’s death, the Commonwealth was required to prove beyond a reasonable doubt that Luster displayed a “conscious disregard [that] almost certain death or serious bodily injury” would result from permitting or forcing Karcher to exit the car. Id. Because the evidence presented at trial was contradictory as to how the decedent exited the car and speculative as to how she came to be lying in the middle of the road, evidence of malice was critical to the determination of guilt:
The Commonwealth argued, that malice was demonstrated through the testimony of Eric Branaugh, Michael Smith and the 9-1-1 recording.5
Luster argues that trial counsel was ineffective for failing to cross-examine Bra-naugh with a prior inconsistent statement he gave to Pennsylvania State Trooper Pierre Wilson the day after Karcher was killed. Trooper Wilson memorialized the statement in his Homicide Investigation Report as follows:
On 01/29/03 at approx. 1205 hrs., I received a call from Eric Maurice BRA-NAUGH. ... BRANAUGH related the following. I was dropped off by the Uni-Mart on Fifth Ave., in Coraopolis by a friend after work. I guess this was around 10-10:30 P.M. on 01/27/03. As I started walking toward home, Christine [Karcher] pulled up and asked me to hang out with her. She was alone and said she was afraid that Aaron [Luster] was going to hurt her or do something real bad to her. I told her that I was just getting off of work and needed to go home-and get a shower. -1, told her to call me later and maybe I’ll come back out. At that point she drove away, At approx. 11:30 P.M. — 12:00 (Mid-Night) Christine called me back from a cell phone. She asked me if I would come out and have a beer with her. I said aren’t you pregnant? She said yes, but I’m really scared and nervous. I noticed that she was crying and her voice was trembling. She sounded drunk, slurring and such. I told her that I was in bed and that I wasn’t coming back out. I- hung the phone up and that was the last time I heard from her.
No Merit Letter, dated, 2/28/2008, Exhibit, Homicide Investigation Action Report (emphasis supplied). Significantly, Bra-naugh’s statement to Trooper Wilson did not include any statement that he could hear Luster screaming at Karcher, as she was crying and telling Branaugh that Luster was “trying to Mil” her.
In a written response to this challenge, trial counsel stated he could not remember that line of questioning. At the PCRA *1056hearing, trial'counsel provided'no further explanation for his inaction.
Pennsylvania Rule' of Evidence 613 provides, in relevant part:
A witness may be examined concerning a prior inconsistent statement made by the witness, whether written or not, and the statement ne'ed not be shown or its contents disclosed to the witness at that time, but on’request the statement or contents -shall be shown or disclosed to opposing counsel. ;■ ■
Pa.R.E. 613(a) '(emphasis hi - original). This Court has clarified that “[m]ere dissimilarities or omissions in prior statements ... do not • suffice as impeaching evidence; the dissimilarities or omissions must be substantial enough to cast doubt on a witness’ testimony to be admissible as prior inconsistent statements.” McManamon v. Washko, 906 A.2d 1259, 1268 (Pa.Super.2006), appeal denied, 591 Pa. 736, 921 A.2d 497 (2007), quoting Commonwealth v. Bailey, 322 Pa.Super. 249, 469 A.2d 604, 611 (1983).
Although we recognize that a mere omission or dissimilarity in a prior statement does not render a prior statement inconsistent for impeachment purposes, we find that the omission here was “substantial enough to cast doubt oh [Branaugh’s] testimony.” McManamon, 906 A.2d at 1268. Indeed, the most damaging part of Branaugh’s trial testimony was his description of that 11:30 p.m. cell phone conversation with Karcher. Thus, his failure to mention the occurrence of that phone call, or recall the critical contents of that conversation, to Trooper Wilson on the day after Karcher’s death would certainly have cast doubt on the reliability of his detailed trial testimony rendered more than one year after the incident. Consequently, trial counsel’s failure to cross-examine Branaugh with this prior inconsistent statement cannot be justified on strategic grounds.
Moreover, during the PCRA hearing, trial counsel acknowledged that he was aware of the statement at the time of trial. We can discern no reasonable basis for counsel’s failure to cross-examine Bra-naugh regarding the discrepancy.
Furthermore, I am of the view that trial counsel’s omission constituted prejudice. Branaugh’s trial testimony that Karcher told him that Luster was “trying to kill” her, as well as Luster’s threats and cursing in the background, provided affirmation to the jury of the difficult-to-understand and sometimes inaudible 9-1-1 tape.6 His testimony that he heard appellant threaten to kill Karcher is in stark contrast to his statement to police that she just asked him to meet for a drink. Thus, there is certainly a “reasonable possibility” that but for counsel’s omission, the outcome of the trial would have been different. Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 332-333 (1999) (prejudice in context of ineffectiveness means there is reasonable’ probability that, but for counsel’s error, outcome of proceeding would have differed). Accordingly, I must dissent regarding this issue.
Next, Luster argues appellate counsel was ineffective for failing to challenge the testimony of Luster’s wife regarding comments that he allegedly made to her following the incident with Ms. Karcher. The phone call to Cherryl Luster has been argued in this appeal as a demonstration of consciousness of guilt. On its face, this issue has arguable merit since the trial court’s purported reason for permitting *1057the testimony at trial was erroneous.7 The trial court presumably allowed the testimony under the mistaken premise that, spousal privilege does not apply in a murder trial. See Commonwealth v. Small, 602 Pa. 425, 980 A.2d 549 (2009). The PCRA court concluded appellate counsel’s decision was properly • a part of winnowing issues on appeal. The Majority posits the statements made to Cherryl Luster were not subject to spousal privilege and even if they were, any error in the admission of the testimony was harmless.
While I agree with the Majority’s initial analysis of counsel’s obligation to raise issues of merit on appeal, I diverge from the Majority’s analysis regarding the application of 42 Pa.C.S. § 5914.8 I also note the Majority has thoroughly set forth, the factual predicate for this argument, however, for convenience I will briefly reiterate the facts.
Cherryl Luster testified that she and Luster were married in July 1999, and separated in March 2002. They remained married in the relevant time period although the majority of their contact revolved around their children. Sometime between 1:00 and 1:30 a.m., January 28, 2003, she received a phone call from Luster in which he asked her “will you still love me no matter what I did.” N.T. Trial, 3/16/04, at 132. Phone records indicated there were phone calls made from Luster to his wife at 1:18 a.m. and 1:41 a.m. The Commonwealth argued 1:18. a.m. was the time of the relevant phone call. See N.T. 3/18/04, at 478. This phone call was made approximately one hour prior to Karcher’s demise.
The Majority states spousal immunity is inapplicable because there was no showing of an expectation of confidentiality between Luster and his wife. This determination was based upon the facts that Luster and his wife were separated and their contact was largely limited to interactions regarding their children. See Majority at 1045-46.
I agree that the factors listed by the Majority are appropriate in determining the existence of a confidential relationship. However, the message itself, a question whether his wife would still love him no matter what he did, reveals a continuing bond between the two.
To be protected as a confidential communication, knowledge must be gained through the marital relationship and in the confidence which that relationship inspires.
Commonwealth v. Dubin, 399 Pa.Super. 100, 581 A.2d 944, 946 (1990).
Communications between spouses are presumed to be confidential, and the party opposing application of the rule disqualifying such testimony bears the burden of overcoming this presumption. Commonwealth v. McBurrows, 779 A.2d 509, 514 (Pa.Super.2001).
Although separated, Luster and his wife were still married and the substance of the communication, regarding the continuing love of his wife, indicates the confidence that the marriage inspired. Additionally, the evidence showed Luster and his wife had ongoing phone calls until approximately 2:30 in the morning regarding Luster coming to meet his wife. The next day, Cherryl Luster went to Luster’s mother’s *1058house to meet him. These actions demonstrate an ongoing relationship between the two. Finally, while the Commonwealth elicited testimony that the two were living apart, there was no testimony there existed any plans to end the marriage.
Further, it bears emphasis that appellate counsel provided no discussion of the mechanics or intricacies of the respective rules in support of her conclusion that the spousal immunity claim “wasn’t that important to the ultimate issue.” N.T. PCRA Hearing, 1/11/11, at 54. Therefore, I cannot conclude that counsel’s decision to omit this issue from direct appeal was reasonable.
Consequently, I must examine the question of prejudice. See Kimball, supra. Here, the challenged testimony — specifically, Luster’s question to Cherryl, “will you still love me no matter what I did”— was introduced to provide evidence of Luster’s consciousness of guilt. The error in admitting this testimony was not harmless. In this case, where the issue of malice was crucial, and the events in the car leading up to Karcher’s exit from that vehicle (either willingly or unwillingly) were strongly contested, Luster’s apparent admission that he did something that would make him unworthy of his spouse’s love would have been important in the jury’s deliberation.
Additionally, it bears emphasis that despite Luster’s reference to something he had already done, this phone call occurred approximately 45 minutes prior to Karcher’s 9-1-1 call, and approximately one hour prior to her demise. Nonetheless, the Commonwealth misconstrued the evidence in its closing argument.
What did [Cherryl] Luster tell you that this Defendant said to her? Will you love me no matter what I do? Not will you love me no matter what I did. I did something bad here, will you still love me. Will you still love me no matter what I do at 1:18 in the morning? Together with what Eric Branaugh told you. I’m going to kill you, bitch. I’m going to kill you, bitch. Will you still love me no matter what L do? Not the past tense in either instance. I’m going to kill you. Will you love me no matter what I do? That is evidence of intent. That is evidence of malice. That is evidence of murder.
N.T. Trial, 3/18/04, at 478.
Evidence of malice is a critical element of third degree murder. The nature of the admission coupled with the Commonwealth’s closing argument demonstrates the high level of prejudice resulting from the introduction of Cherryl Luster’s testimony. Accordingly, I would find that Luster is entitled to a new trial on this basis as well.
Lastly, I am compelled to address Luster’s first issue in which he claimed counsel was ineffective for failing to object to hearsay testimony of Branaugh; although I agree with the Majority’s conclusion that no PCRA relief is due on this claim, I arrive at this conclusion through a different analysis. Specifically, I agree with the Majority that the 11:30 p.m. phone conversation with Karcher was admissible as an excited utterance exception to the hearsay rule under Pa.R.E. 803(2), and, therefore, counsel was not ineffective for failing to object. Likewise, I agree that counsel’s failure to challenge the identification of Luster’s voice as the speaker was harmless as Luster acknowledged that it was his voice on the 9-1-1 tape. However, I disagree with the Majority’s determination that the 10:30 p.m. conversation between Karcher and Branaugh was admissible under Pa.R.E. 803(3), even though I find the admission of this testimony to be harmless error.
*1059Branaugh testified he met Karcher and she told him she had had an argument with Luster and was afraid he “was going to do something real bad to her.” She asked Branaugh to stay with her and have a drink to help prevent Luster from taking action. Branaugh declined to stay with Karcher but gave her his cell phone number in the event she needed help later.
An excited utterance is defined as a “statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Pa.R.E. 803(2). The state of mind exception applies in relevant part to a “statement of the declar-ant’s then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health.” Pa.R.E. 803(3).
A panel of this Court noted in the prior PCRA appeal, “[t]he admissibility of statements such as those by Branaugh ... have been subject of considerable discussion in Pennsylvania jurisprudence.” Commonwealth v. Luster, 986 A.2d 1259 (Pa.Super.2009) (unpublished memorandum at 13). Generally, our appellate courts have held that out of court statements by homicide victims are admissible when the statements are relevant for some other purpose, such as proof of motive or malice. See Commonwealth v. Puksar, 559 Pa. 358, 740 A.2d 219, 225 (1999), cert. denied, 531 U.S. 829, 121 S.Ct. 79, 148 L.Ed.2d 42 (2000) (victim’s statements that he did not trust defendanVbrother and that he believed that defendant was trying to pass off replica model trains as originals were admissible to prove motive and ill will between brothers); Commonwealth v. Chandler, 554 Pa. 401, 721 A.2d 1040, 1045 (1998) (victim’s statements concerning her “negative feelings about [defendant] and her relationship with him” admissible to prove malice and motive for killing); Commonwealth v. Collins, 550 Pa. 46, 703 A.2d 418, 425 (1997), cert. denied, 525 U.S. 1015, 119 S.Ct. 538, 142 L.Ed.2d 447 (1998) (victim’s “statements evincing an intent to meet the defendant shortly before killing” and her concern that defendant would harm her if she “hindered his drug trade” were admissible to prove defendant’s opportunity and motive); Commonwealth v. Sneeringer, 447 Pa.Super. 241, 668 A.2d 1167, 1171-1172 (1995), appeal denied, 545 Pa. 651, 680 A.2d 1161 (1996) (victim’s statement concerning her intention to end her relationship with defendant relevant to motive for killing).
Branaugh testified regarding his 10:30 p.m. encounter with Karcher as follows:
Q [Prosecution]: Did you have any contact, face-to-face contact with Christine that night?
A: Yes, I did. That is when I seen her, I talked to her.
Q: Can you describe, first of all, what was her demeanor, how was she?
A: She sounded like she had been drinking. She was nervous and scared.
Q: And did she say anything to you about why she was scared?
A: Yes. That her and Aaron had an argument that night and he was going to do something real bad to her and she was, like, really scared.
Q: And did she ask you for anything? A: Yes. She asked me if I would hang out with her to make sure nothing happens to her and asked me to have a drink with her, just to keep her company.
N.T. Trial, 3/15/04, at 100-101.
The statement at issue here does not provide proof of motive or malice on the part of Luster. Indeed, Karcher’s statement that she was scared that Luster “was going to do something real bad to her” concerned her own state of mind and her *1060fear of Luster, and it is well-settled that hearsay evidence concerning the victim’s state of mind is admissible only if the victim’s state of mind is a “factor in issue” at trial. Commonwealth v. Laich, 566 Pa. 19, 777 A.2d 1057, 1061 (2001). Here, Karcher’s statement is more akin to the. victims’ statements in Commonwealth v. Thornton, 494 Pa. 260, 431 A.2d 248 (1981), Laich, supra, and Commonwealth v. Levanduski, 907 A.2d 3 (Pa.Super.2006) (en banc).
In Thornton, supra, the Commonwealth introduced a statement by the homicide victim that he carried a gun for protection because the defendant and his brothers “were after him.” Thornton, 431 A.2d at 251. On appeal, the Pennsylvania Supreme Court held that the statement was erroneously admitted because “the victim’s state of mind was not a matter in issue in the case.” The Supreme Court explained:
Only when the declaration is considered for the truth of the matter asserted, that appellant and his brother were after the victim, does the declaration become relevant, that is, both material to and probative of appellant’s intent to kill. However, when considered for its substantive truth, the declaration, although relevant, is incompetent and hence inadmissible because it is hearsay' not within any exception.
Id. (emphasis supplied).9
In Laich, supra, the Supreme Court once again considered the admissibility of a statement by a homicide victim. In that case, one week before her death, the defendant’s girlfriend told the witness that the defendant had warned her that “if he ever caught her with another man, that he would kill them both.” Laich, 777 A.2d at 1060. One week later, the defendant fatally shot his girlfriend and a man after he found them naked in his apartment. The Court again held that the victim’s statement, which foreshadowed her death, constituted inadmissible hearsay. The Court explained:
Here, as in Thornton, what [the appellant’s girlfriend] believed about the state of her relationship with Appellant was completely irrelevant to Appellant’s degree of guilt. Appellant admitted killing [the victims], but argued that he' had only done so with provocation. In light of Appellant’s defense, it was Appellant’s state of mind at the time of the killings that was relevant as to whether he committed the crimes with premeditation or whether, as he claims, he was acting with a “sudden and intense passion resulting from serious provocation.” Contrary to what the lower courts concluded, [the victim’s] state of mind regarding her relationship with Appellant was simply not relevant given Appellant’s defense.
Laich, 777 A.2d at 1062 (emphasis in original and footnotes omitted).10
Finally, in Levanduski, supra, an en banc panel of this Court considered whether the trial court had properly admitted into evidence a letter written by the victim in which he. relayed his suspicions that his wife (the appellant) and her paramour might try to kill him. The panel concluded that the letter constituted inadmissible hearsay, and did not meet the state of mind exception to the hearsay rule:
*1061Under the common, application of this hearsay exception, [the victim’s] letter could be used to establish his own state of mind, but not Appellant’s state of mind. [The victim’s] state of mind was not a matter at issue in this case. Only when [the victim’s] letter is considered for the truth of the matter asserted, does it become relevant, that is material to and probative of Appellant’s intent or motive to kill [the victim]. However, when considered for its substantive truth, although relevant, the letter is incompetent and therefore inadmissible.
Levanduski, 907 A.2d at 18 (citation omitted).
Here, the statement at issue, ie., that Luster was “going to do something real bad to her,” was relevant only to Karcher’s state of mind and her fear of Luster. However, Karcher’s state of mind was not a “factor at issue” in this case. See Laich, supra. The statement, considered alone, did not provide proof of motive or malice. Indeed, unless it is considered for its. truth, the statement was irrelevant to Luster’s defenses that (1) his actions did not cause Karcher’s death, .and (2) that he did not act with malice. See id. In light of the foregoing I cannot agree that Karcher’s statement to Branaugh that she was afraid he was going to do something “real bad” to her represents a valid state of mind exception.
Nevertheless, whilé I believe counsel should have objected to the introduction of this testimony, I cannot conclude the failure caused Luster prejudice. Substantially similar evidence was validly admitted regarding the second phone call. Because the improperly admitted evidence is merely cumulative to other properly admitted evidence, I cannot find the harm needed for a finding of ineffective assistance of counsel.
In conclusion, as discussed above, I believe Luster has proven two claims of ineffective assistance of counsel. Trial counsel failed to challenge critical evidence from Branaugh and appellate counsel failed to raise an arguably valid challenge to other critical evidence from Luster’s wife. This unchallenged evidence provided vital support to the Commonwealth’s case. The remaining evidence was not overwhelming. In my view, these omissions of counsel prejudiced Luster’s case, and compel reversal.of the order of the'PCRA court and a new trial. . . ■
Therefore, I must respectfully dissent.
. These issues are numbered two and three in Luster's brief.
. "To prove counsel ineffective, the petitioner must demonstrate that: (1) the underlying issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) the petitioner was prejudiced by coun.sel's act or omission.” Commonwealth v. Champney, — Pa. -, 65 A.3d 386 (2013).
. Although Karcher had lived with Chester Bell for ten years, at the relevant time period, Karcher had also rented an apartment in Carnegie. See N.T. Trial, 3/15/04, at 90.
. This other motorist was arrested but his blood alcohol content was not obtained until after the two hour statutory time requirement had passed. Therefore, it was never legally established that he was intoxicated.
. Smith provided testimony that approximately three hours prior to her death, he and. Karcher were confronted by Luster who was extremely angry and was under the mistaken belief that Karcher and Smith were sexually involved.
The 9-1-1 tape, while clearly demonstrating Luster's anger, does not specifically negate Luster’s statement to the police that he slowed or stopped the car and that Karcher left the car of her own will, and reasonably functioning. Further, despite the fact the Luster can be heard on the 9-1-1 tape telling Karcher to 'jump” multiple times, when the car door was open while they were driving on Interstate 376, Luster tells her to close the door and apparently pulls her back into the car. It is at this point Karcher says her arm is broken.-
. We note that the jurors did not have the transcript of the 9-1-1 tape for reference when they listened to it.
. At trial, the court did not specifically identify the rationale behind its ruling.
. In entirety, Section 5914 states, "Except as’ otherwise provided in this subchapter, in a criminal proceeding neither husband nor wife shall be competent or permitted to testify to confidential communications made by one to the other, unless this privilege is waived upon trial.’’ 42 Pa.C.S. § 5914.
. The Thornton court ultimately held, however, that the error was harmless in light of the overwhelming evidence of the appellant’s guilty and the lack of support for the appellant's defenses of self-defense and provocation. Thornton, 431 A.2d at 252.
. The Laich Court considered, but ultimately rejected, the Commonwealth’s claim that the admission of the victim's statement was harmless error. Commonwealth v. Laich, 566 Pa. 19, 777 A.2d 1057, 1061 (2001).