author: POPOVICH, Judge:

text:
    681 A.2d 775
    Kenneth M. MILLER, Appellant, v. Jennifer L. STEINBACH, Appellee.
    Superior Court of Pennsylvania.
    Argued May 1, 1996.
    Filed July 17, 1996.

      Leonard A. Grence, Butler, for appellant.
    J. Stevenson Suess, Butler, for appellee.
    Before POPOVICH, EAKIN and HESTER, JJ.
   POPOVICH, Judge:

This case involves an appeal from the September 27, 1995 order of the Court of Common Pleas of Butler County denying appellant’s request to reconsider an order entered in the Court of Common Pleas of Centre County, whereby he was ordered to pay the full cost of his psychological evaluation and half the cost of his daughter’s psychological evaluation needed for a determination regarding partial custody. We find that the order in question is interlocutory, and, accordingly, we quash this appeal.

The record reflects the occurrence of the following events: Appellant filed a complaint seeking partial custody and visitation rights to his minor child. In the complaint, he alleged that he was the natural father of the minor child born out of wed-lock to Jennifer L. Steinbach. The child and Ms. Steinbach reside with her present husband, Dean Steinbach.

To resolve appellant’s claims regarding custody, the Court of Common Pleas of Centre County held a hearing on July 6, 1994. Prior to the hearing, Ms. Steinbach filed a petition for psychological evaluations. Pursuant to Pa.R.C.P. 1915.8, the court approved this petition and ordered appellant to pay for the full cost of his psychological evaluation and half the cost of his daughter’s psychological evaluation. The court then awarded appellant visitation rights for his daughter, and indicated that it would not make a determination regarding partial custody until the psychological evaluations were received and a full hearing was held.

On September 27, 1995, appellant filed in the Court of Common Pleas of Butler County a petition for special relief/reconsideration of the Court of Common Pleas of Centre County’s order requiring him to pay for the psychological evaluations. After speaking on the telephone with the Judge from Centre County, the Judge from Butler County denied appellant’s petition. This appeal followed and appellant was granted the right to proceed informa pauperis.

Intertwined with appellant’s request that we review the court’s order requiring him to pay for the psychological evaluations is the appealability of the order in question. We must consider appellee’s contention that the lower court’s order is interlocutory and not immediately appealable.

“It is clear that an appeal will lie only from a final order unless an appeal is otherwise permitted by statute or rule of court.” Schwartz v. Schwartz, 411 Pa.Super. 282, 601 A.2d 349, 351 (1992) (citations omitted). “An order is generally not a final order unless it serves to put the litigant out-of-court either by ending the litigation or disposing of the case entirely.” Grove North America v. Arrow Lift, 421 Pa.Super. 12, 617 A.2d 369, 372 (1992) (citations omitted). The order in this case requiring appellant to pay for the psychological evaluations does not end the litigation or dispose of the entire case. The partial custody action remains unfinished because the lower court has not made a determination regarding custody, that is, appellant has neither been granted nor denied partial custody of his minor child. Rather, the order in question merely directed appellant to submit to and pay for psychological evaluations pursuant to Pa.R.C.P. 1915.8(a) and (e).

Under Rule 1915.8, a court may order the child or a party to submit to an evaluation by an appropriate expert and the court may assess the cost of the examination to any or all of the parties. The Comment to Rule 1915.8 indicates the following:

In order to make a proper determination in a child custody case, the court often requires information which can only be supplied by an expert evaluation of the parties and the subject child. The rule also provides a range of sanctions which the court may impose for failure to comply with an order directing evaluations, and provides that a petition for contempt for failure to comply with an order entered upon this rule is to be treated in an expedited fashion.

Here, appellant’s appeal is premature. At this point, he has not disobeyed the lower court’s order directing him to pay for the psychological evaluations, he has not been sanctioned in any manner by the lower court, and, more importantly, he has not been denied partial custody of his daughter. The lower court’s order does not effectively put him out of court. See Grove North America, supra. Accordingly, the order is interlocutory and not a final order.

Under Pennsylvania law, an appeal may be taken from an interlocutory order as of right (Pa.R.A.P.311), by permission (Pa.R.AP. 313, 1301 et seq.), or from a collateral order (Pa. R.A.P.313). After a careful examination of Pa.R.A.P. 311, we conclude that appellant’s appeal of the interlocutory order may not be taken as of right. We further conclude that appellant’s appeal may not be taken by permission.

“[A]n interlocutory appeal may be taken by permission pursuant to Chapter 13 of the Rules of Appellate Procedure.” Patton v. Hanover Insurance Co., 417 Pa.Super. 351, 612 A.2d 517, 518 (1992). See Pa.R.A.P. 312; Pa.R.A.P. 1301 et seq. Here, appellant has failed to invoke the procedure outlined in Chapter 13. Consequently, the order is not appealable by permission under the provisions of Chapter 13.

We further find that appellant’s appeal does not meet the requirements for the collateral order doctrine. See Pa. R.A.P. 313. Under Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), an order which is separable from and collateral to a cause of action may become appealable under certain circumstances. Under Cohen, an order is considered “final and appealable if (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost.” Plowman v. Plowman, 409 Pa.Super. 143, 597 A.2d 701, 704 (1991) (citation omitted).

Under this test, we find that the order issued by the lower court was not appealable. While appellant’s right is extremely important and deserves consideration, we do not find that the order was separable and collateral to the main cause of action. Appellant filed a petition for partial custody of his child. The court ordered that he undergo and pay for psychological evaluations before the court would resolve the custody issue. In effect, the issue concerning the psychological evaluations is intertwined with the issue of whether appellant should be granted partial custody of his minor child.

In addition, we find that the question presented in appellant’s appeal is not such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost. Appellant’s argument that he was denied due process by the lower court’s order that he pay for the psychological evaluations can be presented on appeal once the lower court has issued a final order on the matter. Under these circumstances, we hold that the lower court’s interlocutory order is not reviewable until there has been a final disposition of the action. See Schwartz, supra

Appeal quashed.

      . Jennifer L. Steinbach, the child's mother and the appellee in this matter, was ordered to pay the full cost of her psychological evaluation, the full cost of her husband’s psychological evaluation and half the cost of her daughter’s psychological evaluation.

      . Rule 311 lists the interlocutory orders to which a right of appeal attaches. The right to appeal from an order directing a party to pay for psychological evaluations in the context of a custody action is not among those orders listed in Rule 311. Accordingly, appellant may not appeal as of right from the order at issue.


source: Caselaw Access Project

author: CERCONE, President Judge Emeritus: DEL SOLE, Judge,

license: Public Domain

text:
    681 A.2d 778
    COMMONWEALTH of Pennsylvania, Appellant v. William ALLEN.
    Superior Court of Pennsylvania.
    Argued May 2, 1996.
    Filed July 17, 1996.
    Reargument Denied Sept. 19, 1996.

      Mary L. Porto, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Karl Morgan, Philadelphia, for appellee.

      Before CIRILLO, President Judge Emeritus, DEL SOLE, J. and CERCONE, President Judge Emeritus.
   CERCONE, President Judge Emeritus:

This is an appeal by the Commonwealth from an order suppressing physical evidence found on appellee William Allen. We reverse.

After the suppression hearing, the lower court made the following findings of fact:

On October 24, 1994 at approximately 1:25 PM Philadelphia Police Officer Kyle Bey assigned to the 22nd Police District received information from one Grixby Stevens who works with senior citizens with regard to certain drug activity.... Mr. Stevens is a retired Philadelphia Police Department lieutenant and has only formerly worked for the 22nd Police District.... Mr. Stevens was known to Officer Bey.
That Stevens informed Bey that drugs were being sold by a heavyset middle-aged male known as ... Mookie ... out of a house located at 2128 North Latona Street in Philadelphia ____ Mr. Stevens further stated that Mookie is known to also carry a gun----
That Stevens told Bey that a senior citizen lives in the house in which Stevens asserted the drugs were being sold.... Stevens ... received this information from a senior citizen ... for whom he provides services.
That Stevens told Bey that the senior citizen is allowing the drugs to be sold out of her house, not by herself, but by Mookie. Stevens further stated that drugs were also being sold on the street in front of the residence.... Bey testified that the 21 hundred block of Latona Street was known as a high drug traffic area.
That Officer Bey based upon Stevens’ description stated [that Mookie] was a person he had come in contact with on a prior occasion____ Bey indicated that he was familiar with the 21 hundred block of Latona Street because he and his partner had come into contact with drug sales on the street; ... Bey testified he had never made any arrests on the block.
That based upon the information acquired from Stevens[,] Bey and his partner Officer Craig Noll rode to the 21 hundred block of Latona Street and to the residence of 2128 North Latona along with Mr. Stevens.
That as the officers entered the block they observed a male whom they believed to be the [appellee], sitting on the sidewalk in a chair with his hands folded, leaning back with his head down, and his eyes appearing to be closed, outside of the property at 2128 North Latona Street.
That Officer Bey approached the [appellee] and observed a large bulge in his left pants pocket.... Bey told the [appellee] to get up and put his hands on the wall....
That Officer Bey observed a clear plastic baggie which contained off-white chunky substances inside ... the flared front pocket of the [appellee’s] sweatshirt. The [appellee] was handcuffed and searched.
That upon searching the [appellee] Bey retrieved from the [appellee’s] pants pocket clear and multicolored packets which contained rocklike substance also alleged to be crack-cocaine .... [T]he [appellee] was subsequently arrested....

Findings of Fact and Conclusions of Law dated May 12, 1995 at 2-5. Appellee, thereafter, moved to suppress the physical evidence seized. After presiding over a hearing on March 13, 1995, the suppression court concluded as a matter of law that the officer lacked either reasonable suspicion to conduct an investigative stop or probable cause to make an arrest. Consequently, the lower court granted appellee’s motion. In this timely appeal, the Commonwealth contends that the lower court erred in granting appellee’s suppression motion.

In reviewing an appeal taken by the Commonwealth from an order suppressing evidence,

[an appellate] court must first ascertain whether the record supports the factual findings of the suppression court, and then determine the reasonableness of the inferences and legal conclusions drawn therefrom.... If the evidence supports the [suppression court’s] factual findings, we may only reverse if the legal conclusions drawn therefrom are in error.

Commonwealth v. Gommer, 445 Pa.Super. 571, 573, 665 A.2d 1269, 1270 (1995) (citations omitted). The suppression court bears exclusive responsibility for assessing the credibility of witnesses and determining the weight to be accorded to their testimony. Commonwealth v. Dorsey, 439 Pa.Super. 494, 498, 654 A.2d 1086, 1088 (1995). Although we are bound by findings of fact which are supported by the record, we are not bound by the legal conclusions drawn from those facts. Id.

Fourth Amendment jurisprudence delineates three categories of interaction between citizens and the police. Commonwealth v. Ellis, 541 Pa. 285, 293, 662 A.2d 1043, 1047 (1995).

The first of these is a “mere encounter” (or request for information) which need not be supported by any level of suspicion, but carries no official compulsion to stop or to respond. See Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). The second, an “investigative detention” must be supported by a reasonable suspicion; it subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. See Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Finally, an arrest or “custodial detention” must be supported by probable cause. See Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Commonwealth v. Rodriquez, 532 Pa. 62, 614 A.2d 1378 (1992).

Id. at 293-94, 662 A.2d at 1047-48 (footnote omitted). Preliminarily, we must determine whether the detaining officer initially subjected appellee to an investigative detention or a custodial detention.

A custodial detention arises when the conditions and or duration of an investigative detention become so coercive as to be the functional equivalent of an arrest. Commonwealth v. Douglass, 372 Pa.Super. 227, 239, 539 A.2d 412, 418 (1988), appeal denied, 520 Pa. 595, 552 A.2d 250 (1988) (plurality opinion). Whether an arrest has occurred depends upon the impression conveyed to the person detained, not upon the officers’ subjective intentions. Commonwealth v. McManus, 353 Pa.Super. 355, 359, 509 A.2d 1314, 1316 (1986). In determining whether a detention is investigative or custodial, a reviewing court considers the totality of the circumstances including

“the basis for the detention (the crime suspected and the grounds for suspicion); the duration of the detention; the location of the detention (public or private); whether the suspect was transported against his will (how far, why); the method of detention; the show, threat, or use of force, and, the investigative methods used to confirm or dispel suspicion.”

Gommer, 445 Pa.Super. at 581, 665 A.2d 1269, 1274 (quoting Commonwealth v. Douglass, 372 Pa.Super. at 244-45, 539 A.2d at 421) (after observing appellant driving in an erratic and dangerous manner, an off-duty officer stopped the suspect’s vehicle, took possession of his keys, and briefly detained him until other officers could arrive; this did not amount to a custodial detention or arrest). See also Commonwealth v. White, 358 Pa.Super. 120, 516 A.2d 1211 (1986) (suspects were not subject to a custodial detention when officers detained them in a police car for a period of five minutes to ensure the safety of one officer while the other officer investigated the crime scene; the suspects were not frisked, handcuffed or formally placed under arrest, nor did the officers draw their weapons).

In this case, Officer Bey detained appellee based on reports of drug dealing. The officer directed appellee to stand, walk about five (5) feet to a wall and place his hands against that wall to facilitate a weapons frisk. See White, supra, 358 Pa.Super. at 128, 516 A.2d at 1215 (in assessing whether a detention is too long in duration to be justified as an investigative stop, the courts consider whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly during the time it was necessary to detain the suspect). It does not appear from the record that the officer drew a weapon while approaching appellee. Further, it is unclear whether the officer approached appellee alone or with his partner. As he was about to initiate the frisk, the officer saw the packet of cocaine in appellee’s pocket. At that point, the officer handcuffed appellee and placed him under arrest. We cannot agree that the brief period of detention which occurred prior to the officer’s observation of cocaine can be equated with an arrest or custodial detention. See White, 358 Pa.Super. at 131, 516 A.2d at 1217 (noting that every Terry stop involves both a stop and a period of detention during which the suspect is not free to leave but is subject to the control of the police officer).

Assuming that the officer instead conducted an investigative detention, we must now determine whether that stop was predicated on “reasonable suspicion.” “ ‘[When] a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot’ the officer may briefly stop the suspicious person and make ‘reasonable inquiries’ aimed at confirming or dispelling his suspicions.” Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S.Ct. 2130, 2135, 124 L.Ed.2d 334, 344 (1993) (quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889, 911 (1968)). “[F]or such a stop to be reasonable ..., the officer must point to specific and articulable facts ‘which in conjunction with rational inferences deriving therefrom’ warrant the initial stop.” Commonwealth v. Arch, 439 Pa.Super. 606, 612, 654 A.2d 1141, 1143 (1995). We must examine the totality of the circumstances to determine whether a particularized and objective basis for suspecting an individual stopped of criminal activity exists. Commonwealth v. Wilson, 440 Pa.Super. 269, 275-76, 655 A.2d 557, 561 (1995), appeal granted, 543 Pa. 509, 673 A.2d 864 (1996). Although the reasonable suspicion necessary to justify a Terry stop is less stringent than probable cause, the detaining officer must have more than a hunch as the basis for his stop. Mere presence near a high crime area or in the vicinity of a recently reported crime does not warrant a Terry stop. Commonwealth v. Kearney, 411 Pa.Super. 274, 278, 601 A.2d 346, 348 (1992).

A police officer need not personally observe the illegal or suspicious conduct which leads him or her to believe that criminal activity is afoot and that a person is armed and dangerous. In the Interest of S.D., 429 Pa.Super. 576, 579, 633 A.2d 172, 174 (1993). In such cases, “we must consider ‘the specificity of the description of the suspect in conjunction with how well the suspect fits the given description, the proximity of the crime to the sighting of the suspect, the time and place of the confrontation, and the nature of the offense reported to have been committed.’ ” Id. (quoting Commonwealth v. Jackson, 359 Pa.Super. 433, 438, 519 A.2d 427, 430 (1986)). In certain circumstances, even a very limited description may justify an investigatory stop. Interest of S.D., 429 Pa.Super. at 580, 633 A.2d at 174.

In Interest of S.D., a pedestrian informed an officer that two armed black men with drugs were located around the corner. Approximately fifty (50) feet away from where he had received that information, the officer saw appellant, S.D., standing with another man. No other individuals were in the vicinity. The officer immediately conducted a patdown search. The court also noted that the officer conducted the stop in an area of high drag incidence and that the encounter occurred at 5:25 in the morning. Id. After viewing the enumerated factors in light of the totality of the circumstances, the court ruled that the initial investigatory stop and patdown frisk of S.D. were justified. Id. at 581, 633 A.2d at 174.

The officer in this case was likewise justified in conducting the initial stop. A senior citizen living at 2128 North Latona Street advised a retired police officer that a heavyset, middle-aged man named “Mookie” was selling drugs out of her house and in front of her property. “Mookie” was known to carry a gun. The retired officer so informed Officer Bey. Officer Bey testified that the name “clicked.” He was familiar with an individual satisfying that description who went by the name of “Mookie.” Officer Bey further described the area as a high drug area. Based on the foregoing information, Officer Bey drove toward 2128 North Latona Street.

[In] the typical informant case, ... there exists the potential that the informant is acting out of self-interest.... [W]hen the average citizen tenders information to the police, [however], the police should be permitted to assume that they are dealing with a credible person in the absence of special circumstances suggesting that such might not be the case.

Commonwealth v. Dennis, 417 Pa.Super. 425, 431, 612 A.2d 1014, 1016 (1992), appeal denied, 535 Pa. 654, 634 A.2d 218 (1993).

When detained, about one-half hour after the officer received the report, Mookie was sitting in a chair on the sidewalk in front of the exact house the senior citizen had identified. Officer Bey noticed a bulge in appellee’s pocket. After viewing the factors enumerated in light of the totality of the circumstances, we conclude that the officer’s subsequent investigatory stop of appellee was supported by the requisite reasonable suspicion.

After the officer conducted a legal stop of appellee, he was then justified in performing a protective patdown frisk. “To justify a frisk incident to an investigatory stop, the officer must point to ‘specific and articulable facts indicating the person they intend to frisk may be armed and dangerous; otherwise, the talismanic use of the phrase “for our own protection” becomes meaningless.’ ” Interest of S.D., 429 Pa.Super. at 581, 633 A.2d at 175 (quoting Commonwealth v. Patterson, 405 Pa.Super. 17, 21, 591 A.2d 1075, 1078 (1991)). In this case, the detaining officer had been advised that the suspect carried a weapon. As such, the frisk was justified. See Interest of S.D., 429 Pa.Super. at 581, 633 A.2d at 175 (a patdown frisk incident to a lawful investigatory stop was justified when the detaining officer had been informed by an alleged eyewitness that the suspects were armed). Moreover, the officer also had a reasonable belief that appellee dealt in drugs. Our courts have taken judicial notice of the fact that drug dealers are likely to be armed and dangerous, Patterson, 405 Pa.Super. at 22, 591 A.2d at 1078; Interest of S.D., 429 Pa.Super. at 581, 633 A.2d at 175 (an alternative basis for a patdown frisk incident to lawful investigatory stop existed because the detaining officer had a reasonable belief that the suspects were dealing drugs).

As the officer was about to begin the patdown frisk, he noticed inside the opened pouch of appellant’s sweatshirt a clear plastic baggie containing off-white chunky substances in clear plastic packets. The warrantless seizure of a piece of evidence which is in plain view is permissible if the evidence is seen from a lawful vantage point and if the incriminating nature of the evidence is immediately apparent to the viewer. Ellis, 541 Pa. at 297, 662 A.2d at 1049. “[T]he observing officer must have probable cause to believe the evidence in question is contraband or incriminating evidence.” Id. We must consider these factors in light of the totality of the circumstances.

We have already determined that the initial stop of appellant was premised on reasonable suspicion to believe that criminal activity was afoot. We have similarly concluded that the patdown frisk incident to the investigatory stop was also justified. Therefore, the officer viewed the plastic bag from a lawful vantage point. Further, the incriminating nature of the plastic baggie and the packets inside that baggie was immediately apparent to the seasoned officer. Consequently, we deem the warrantless seizure of that contraband permissible.

At that point, the officer handcuffed appellee and placed him under arrest. He continued to patdown appellee. After squeezing the bulge he had noticed earlier, he felt “exactly the items that were in [appellee’s] sweat jacket pocket.” N.T. 3/13/95 at 15. He then retrieved from that pocket clear plastic baggies containing packets of crack cocaine.

In general, a search conducted without a warrant is presumed to be unreasonable unless justified under a recognized exception to the search warrant requirement. Commonwealth v. Agnew, 411 Pa.Super. 63, 74, 600 A.2d 1265, 1271 (1991). A search incident to a lawful arrest is one such exception. Id. After discovering a baggie filled with packets of crack cocaine on appellee’s person, the officer was warranted in the belief that appellee was committing a crime and thus had probable cause to arrest appellee. Accordingly, the officer properly seized the second bag of crack cocaine packets during the search incident to a lawful arrest.

Order reversed; case remanded. Jurisdiction is not retained.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting:

I dissent. I cannot find sufficient evidence to support a determination that the stop of Appellee was justified.

To justify a stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the police must have a reasonable suspicion that criminal activity is afoot. The police must be able to point to specific and articulable facts which reasonably support that suspicion. Commonwealth v. Murray, 460 Pa. 53, 331 A.2d 414 (1975). Reasonable suspicion is viewed under a totality of the circumstances test in which both the content of the officer’s information and the reliability of that information are taken into account. United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Where a tip is anonymous and its reliability therefore relatively low, the officer must have more information than would be required if the tip were more reliable. Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). This court has held that the police must have both suspicious conduct on the part of the person detained and a reasonable belief of some sort of criminal activity. Commonwealth v. Espada, 364 Pa.Super. 604, 528 A.2d 968 (1987).

The information which Officer Bey received was secondhand. The senior citizen did not give information directly to the police. Rather, she told a retired police officer who then passed the information along to Officer Bey. The information itself was not specific; the woman stated only that a man whose description fit Appellee was selling drugs at a certain location and was known to carry a gun. Also, the only evidence of the informant’s reliability is that she was a concerned citizen. See Commonwealth v. Dennis, 417 Pa.Super. 425, 612 A.2d 1014 (1992). Finally, there is absolutely no evidence of suspicious conduct on Appellee’s part. He was merely sitting in a chair with his eyes closed, which is certainly not indicative of any criminal activity.

The majority relies primarily on Interest of S.D., 429 Pa.Super. 576, 633 A.2d 172 (1993). I do not find that case to be controlling. Several factors distinguish S.D. from this case. In S.D., the police received the information directly rather than second-hand and were only fifty feet away when the informant saw the defendant. The stop occurred at 5:25 in the morning, an unusual time to be out on the street, whereas here the stop occurred in early afternoon, a time when one might logically be expected to be sitting outside. Most importantly, however, the court in S.D. reversed the denial of suppression because the scope of the" search exceeded that permitted by Terry. The entire discussion of reasonable suspicion, therefore, was not required in order to support the result in that case.

In numerous other cases, this court has held that an anonymous tip, without any suspicious conduct whatsoever and without any corroboration, is insufficient to support even a Terry stop. See, e.g., Interest of Barry W., 423 Pa.Super. 549, 621 A.2d 669 (1993) (radio call of male selling drugs; defendant saw police and fled); Interest of S.J., 425 Pa.Super. 270, 624 A.2d 1068 (1993) (radio call of black female wearing red jacket, blue jeans, red sneakers and curlers in her hair selling drugs at a specific location; police only saw the woman talking to two men). I see no reason for a different result in this case. The only information the police had was that a man answering Appellee’s description was selling drugs. The officer observed no suspicious conduct; Appellee was sitting in a chair apparently napping. This does not rise to the level of a reasonable suspicion that criminal activity is afoot. I would affirm the trial court’s order suppressing the fruits of the search.

      . The Commonwealth has certified that the suppression order terminates or substantially handicaps its prosecution of appellee. As such, this appeal is proper. Pa. R.A.P. 311(d), 42 Pa.C.S.A.


author: CIRILLO, President Judge Emeritus:

text:
    681 A.2d 785
    Heidi ROWINSKY, Executrix of the Estate of Gary Rowinsky, Deceased, and Heidi Rowinsky, in her own right, Appellant, v. Michael R. SPERLING, M.D., Catherine Phillips, M.D., C.P.U.P. Neurosurgical Assoc., Michael J. O’Connor, M.D., Comprehensive Epilepsy Center, Graduate Hospital, and Graduate Neurosurgery Consultants, Appellees.
    Superior Court of Pennsylvania.
    Argued April 30, 1996.
    Filed July 19, 1996.

      Joseph F. Ricchiuti, Philadelphia, for appellant.
    Barbara S. Magen, Philadelphia, for appellees.
    Before CIRILLO, President Judge Emeritus, DEL SOLE, J. and CERCONE, President Judge Emeritus.
   CIRILLO, President Judge Emeritus:

Heidi Rowinsky, executrix of the estate of her husband, Gary Rowinsky, appeals from an order entered in the Court of Common Pleas of Philadelphia County granting judgment notwithstanding the verdict (JNOV) in favor of appellee Michael J. O’Connor, M.D. We reverse and remand for reinstatement of the jury verdict.

Mr. and Mrs. Rowinsky commenced a lawsuit against Dr. O’Connor with regard to a temporal lobectomy procedure performed at Graduate Hospital on December 7, 1988. The Rowinskys claimed that Dr. O’Connor failed to obtain Mr. Rowinsky’s informed consent before performing the operation. Specifically, the Rowinskys claimed they were not informed of the risk of speech loss or memory loss after the procedure, and were actually assured that these risks did not exist at all. Following a jury trial, a verdict was entered in favor of the estate of Gary Rowinsky in the amount of $400,000.00. Dr. O’Connor filed a motion for post-trial relief. Following oral argument, the trial court granted Dr. O’Connor’s motion for JNOV.

The evidence adduced at trial revealed the following. Early in 1987, Mr. Rowinsky, who was 31 years old, suffered a grand mal epileptic seizure. The seizures continued, and Mr. Rowinsky was eventually admitted to Graduate Hospital to determine whether he was a candidate for a lobectomy, an operation designed to cure seizures. After initial screening tests, Dr. O’Connor, a neurosurgeon, and Dr. Sperling, a neurologist, both agreed that Mr. Rowinsky was a good candidate for the surgery. Before the lobectomy was performed, Mr. Rowinsky was admitted to Graduate for the surgical implantation of depth electrodes. The electrodes were implanted into the brain for monitoring purposes to localize the origin of the seizures. The electrodes were removed after approximately two weeks, and Drs. Sperling and O’Connor recommended that Mr. Rowinsky undergo the lobectomy.

Shortly before the scheduled surgery, a final test, the Wada test, was performed. The Wada test consisted of putting both sides of Mr. Rowinsky’s brain “to sleep” at separate times. According to Mrs. Rowinsky, she and her husband were told that this test would determine in advance the location of damaged areas and assure that memory would be preserved after surgery. After the test, it was Dr. Sperling’s belief that Mr. Rowinsky was not at risk for significant memory problems, and that the operation should go forward as planned. Mrs. Rowinsky testified that on the day before the lobectomy, the Rowinskys were told that the operation would be performed while Mr. Rowinsky was awake to be sure he could speak and identify pictures throughout the procedure.

The operation was performed. Unfortunately, it did not cure Mr. Rowinsky’s seizures, but in fact, made them worse. Further, the lobectomy caused severe speech and memory difficulties. Mr. Rowinsky was unable to return to work due to these difficulties.

On appeal, Mrs. Rowinsky raises one issue for our consideration:

Whether the trial court erred in granting JNOV in favor of defendant, where the eourt replaced the jury’s finding in favor of plaintiff with its own conclusion, and based that conclusion on one brief colloquy on cross examination, and failed to consider all of the evidence that supported the jury’s verdict?

We initially set forth our well established standard of review:

A grant of judgment n.o.v. is appropriate only in a clear case, one where the facts are such that no two reasonable minds could fail to agree that the verdict was improper. See Scott v. Southwestern Mut. Fire Assn., 436 Pa.Super. 242, 647 A.2d 587 (1994). Thus, in order to determine the propriety of a decision granting judgment n.o.v. “[w]e must determine whether there was sufficient competent evidence to sustain the verdict, granting the verdict winner the benefit of every reasonable inference that can reasonably be drawn from the evidence and rejecting all unfavorable testimony and inferences.” Id., 436 Pa.Super. at 247, 647 A.2d at 590. We will not reverse the trial court’s decision absent the demonstration of either an abuse of discretion or an error of law. Id.

Samuel Rappaport Family Partnership v. Meridian Bank, 441 Pa.Super. 194, 201-02, 657 A.2d 17, 20 (1995); see Moure v. Raeuchle, 529 Pa. 394, 604 A.2d 1003 (1992) (judgment notwithstanding the verdict should only be entered in a clear case and any doubts must be resolved in the verdict winner’s favor); see also Pirozzi v. Penske Olds-Cadillac-GMC, 413 Pa.Super. 308, 605 A.2d 373 (1992); Ingrassia Construction Co., Inc. v. Walsh, 337 Pa.Super. 58, 486 A.2d 478 (1984). “It is further well-settled that a judge should not reach his decision on how he would have voted if a member of the jury, but on the facts as they present themselves through the sieve of the jury’s deliberations.” Jones v. Constantino, 429 Pa.Super. 73, 81, 631 A.2d 1289, 1293 (1993) (citations omitted).

Mrs. Rowinsky asserts that her husband was not specifically informed of the risks involving speech and memory loss; to the contrary, Mr. Rowinsky was assured that these risks were eliminated before surgery by an exhaustive battery of pre-operative tests. “[W]here a patient is mentally and physically able to consult about his condition, in the absence of an emergency, the consent of the patient is ‘a prerequisite to a surgical operation by his physician’ and an operation without the patient’s consent is a technical assault.” Stover v. Association of Surgeons, 431 Pa.Super. 11, 17, 635 A.2d 1047, 1050 (1993) (quoting Gouse v. Cassel, 532 Pa. 197, 202, 615 A.2d 331, 333-34 (1992) (citations omitted)). The Pennsylvania Supreme Court has defined the scope of “consent” as necessarily requiring “informed consent.”

[Sjince the agreement between the physician and his patient is contractual in nature, for there to be a valid consent it must be clear that both parties understand the nature of the undertaking and what the possible as well as expected results might be____ [I]t will be no defense for a surgeon to prove that the patient had given his consent, if the consent was not given with a true understanding of the nature of the operation to be performed, the seriousness of it, the organs of the body involved, the disease or incapacity sought to be cured, and the possible results.

Gray v. Grunnagle, 423 Pa. 144, 166, 223 A.2d 663, 674 (1966); accord: Gouse, 532 Pa. at 202-3, 615 A.2d at 334; Stover, 431 Pa.Super. at 17, 635 A.2d at 1050. Additionally,

[a] physician or surgeon need not disclose all known information; however, the physician or surgeon is required to advise the patient of those material facts, risks, complications and alternatives to surgery that a reasonable person in the patient’s situation would consider significant in deciding whether to have the operation. Thus, the patient is assured that he will be provided with “all the material facts from which he can make an intelligent choice as to his course of treatment, regardless of whether he in fact chooses rationally.”

Gouse, 532 Pa. at 203, 615 A.2d at 334 (quoting Cooper v. Roberts, 220 Pa.Super. 260, 266, 286 A.2d 647, 650 (1971)). (emphasis added).

The goal of the informed consent doctrine is to provide the patient with material information which is necessary to determine whether or not to proceed with the surgical procedure. Sinclair v. Block, 534 Pa. 563, 570, 633 A.2d 1137, 1140 (1993). If this vital information regarding risks, complications, and alternatives to surgery, which a reasonable person in the patient’s position would have considered significant, is not disclosed to the patient, the surgeon is held liable. See Gouse, 532 Pa. at 202, 615 A.2d at 333. The determination of what a reasonable patient would do or consider significant under certain circumstances is for the jury to decide; expert assistance is not necessary. Sagala v. Tavares, 367 Pa.Super. 573, 579, 533 A.2d 165, 168 (1987) (citing Cooper, 220 Pa.Super. at 260, 286 A.2d at 651).

Guided by our scope of review, we must determine whether sufficient competent evidence existed to sustain the verdict; we view such evidence in the light most favorable to Mrs. Rowinsky. Samuel Rappaport Family Partnership, supra. At trial, Mrs. Rowinsky presented the expert testimony of a neurosurgeon, Dr. Donald Penney. Dr. Penney opined that because Mr. Rowinsky’s seizures were located in his left temporal lobe, the lobectomy posed a significant risk of harm to speech or memory. Dr. O’Connor’s expert did not dispute this; Dr. John Vires, director of neurosurgery, agreed that the operation posed a risk to speech and memory, and that a patient should be informed of the risk. Thus, the only issue for the jury to decide was whether the information provided to Mr. Rowinsky was sufficient to inform him of those risks.

Mrs. Rowinsky testified that the risks of surgery which were presented to her husband included death (as is the case in any surgery), stroke, and loss of peripheral vision; neither speech loss nor memory loss were mentioned. Mrs. Rowinsky introduced into evidence the Graduate Hospital Epilepsy Center Newsletter. The Rowinskys received the newsletter several months before the surgery. The newsletter, in discussing surgery for patients with epileptic seizures, stated that the Wada test was performed in part “to assure that memory will be preserved after surgery.” Additionally, when discussing the risks involved in surgery, the newsletter stated: “Careful evaluation in advance of surgery insures that the area to be removed is not vital for normal function.” Furthermore, Dr. Sperling’s (Dr. O’Connor’s colleague) deposition testimony was read into the record, revealing Dr. Sperling’s belief that the Wada test indicated Mr. Rowinsky would not be at risk for short-term memory difficulties.

When we view the evidence in the light most favorable to Mrs. Rowinsky, we find that this is not a “clear case” Samuel Rappaport Family Partnership, supra, warranting a JNOV. The trial court focused only on one segment of cross-examination questions directed at Mrs. Rowinsky to support its entry of JNOV. On cross-examination, Mrs. Rowinsky was asked:

Q. Did you understand that the reason it was being done in this fashion and the reason that Gary was going to be continually asked questions and shown pictures during this operation was because of the potential that his speech or his memory, his ability to answer these questions appropriately could be affected by the operation? (emphasis added)
A. We understood it to be done that way to insure that he wouldn’t have any problems with those areas.
Q. But the potential was there, wasn’t it? That is why they were doing it this way because of that potential?
A. Yes.

Even if this colloquy raised some doubt that the Rowinskys were not aware of the risk of harm to Mr. Rowinsky’s speech and memory, this doubt was removed on redirect examination, during which Mrs. Rowinsky explained again that she and her husband believed any risk of harm to memory had been eliminated. On redirect, Mrs. Rowinsky was asked the following questions by her attorney:

Q. When you read that [the newsletter from Graduate Hospital] did you understand that there was still some risk that memory wouldn’t be preserved?
A. No.
Q. Another paragraph or another sentence [from the newsletter] you read: What are the risks involved in surgery? Careful evaluation [the Wada test] in advance of surgery insures that the area to be removed is not vital to normal function. If it were then the operation would not be recommended. What do you think the word insures meant? Did that indicate to you that there was a risk that the tissue removed would be vital? (emphasis added)
A. No. (emphasis added)

This re-direct examination confirms that Mrs. Rowinsky and her husband did not believe Mr. Rowinsky’s speech and memory functions were at any risk of harm. In fact, the Wada test purportedly insured that memory loss would not occur. “[I]t will be no defense for a surgeon to prove that the patient had given his consent, if the consent was not given with a true understanding of the nature of the operation ... and the possible results.” Gouse, 532 Pa. at 203, 615 A.2d at 334 (emphasis added). Clearly, the Rowinskys were not given a “true understanding” of the operation’s possible results for purposes of informed consent. Mrs. Rowinsky’s testimony, both on direct and re-direct, is more than sufficient evidence by which the jury could have reasonably concluded that she and her husband were not informed of material risks or complications which a reasonable person would have considered significant in deciding to have the recommended surgery. Gouse, supra.

The appellees argue that even if the plaintiff proves a failure to obtain informed consent, he must also prove, by way of competent expert evidence, that the surgery at issue caused the claimed injury. This argument is meritless. The Pennsylvania Supreme Court has expressly stated the following:

“We have held that a physician or surgeon who fails to advise a patient of material facts, risks, complications, and alternatives to surgery which a reasonable [person] in the patient’s position would have considered significant in deciding whether to have the operation is liable for damages which ensue, and the patient need not prove that a causal relationship exists between the physician’s or surgeon’s failure to disclose information and the patient’s consent to undergo surgery.”

Sinclair, 534 Pa. at 568-69, 633 A.2d at 1140 (citing Gouse, 532 Pa. at 202, 615 A.2d at 333) (emphasis added). Since Mrs. Rowinsky has established that she and her husband were not informed of certain material risks, recovery is permitted under the doctrine of informed consent, regardless of causation and actual damages. In granting JNOV in favor of Dr. O’Connor, the trial court failed to grant the verdict winner the benefit of every reasonable inference. Samuel Rappaport Family Partnership, supra. Our reading of the record indicates this is not a clear case and, therefore, reasonable minds could fail to agree that the verdict was improper. Mrs. Rowinsky testified at length regarding the risks she and her husband were and were not informed of and, presumably, this testimony was believed by the jury. Given this testimony, the jury had sufficient evidence upon which to enter a verdict in favor of appellant.

When we consider the evidence in the light most favorable to the verdict winner, granting her the benefit of all reasonable inferences, Samuel Rappaport Family Partnership, supra, we believe the testimony adduced at trial reflected that the Rowinskys were not aware of the risk of harm to Mr. Rowinsky’s speech and memory. For this reason, we find the trial court abused its discretion in granting a judgment notwithstanding the verdict. Jones, supra.

Accordingly, we reverse the judgment of the trial court and remand for reinstatement of the jury verdict.

Reversed and remanded. Jurisdiction relinquished.

      . The lawsuit was also filed against Graduate Hospital and several other physicians. The claims against the other defendants were resolved by stipulation, summary judgment, or non-suit.

      . The lawsuit was initially filed by Gary and Heidi Rowinsky; however, Gary Rowinsky died after the suit was filed. Heidi Rowinsky proceeded with her husband's claims as executrix of his estate. No claim was made that Mr. Rowinsky’s death was related to the averments set forth in the lawsuit.

      . The record reflects that Dr. Sperling specifically stated: “The Wada test showed that his [Mr. Rowinsky’s] left hemisphere was dominant for language and that his right hemisphere was capable of supporting memory, so that he would not be at risk for a significant amnestic syndrome [memory loss] as a result of surgery.”

      . Mrs. Rowinsky further testified that she was told the reason her husband would be awake during surgery was so the doctors could make sure he could speak, identify pictures, and respond to questions. She was never told there was a chance that as a result of the surgery he would not be able to perform these normal functions.

      . We recognize that the newsletter received by the Rowinskys, while it supports their case, is not direct evidence of failure to inform since it was not issued solely to them or tailored specifically to their case.


text:
    681 A.2d 791

    COMMONWEALTH of Pennsylvania, Appellee, v. Roger Lee HENRY, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted June 17, 1996.
    Filed July 23, 1996.

      Edward F. Browne, Lancaster, for appellant.
    Joseph C. Madenspacher, District Attorney, Lancaster, for Commonwealth, appellee.
    Before KELLY, POPOVICH and HESTER, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence of the Court of Common Pleas of Lancaster County imposed on December 15, 1995. Appellant pleaded guilty to one count of receiving stolen property on information 2891-1994, one count each of theft and terroristic threats on information 0136-1995, two counts each of burglary, theft and criminal conspiracy on information 1040-1995, and one count of receiving stolen property on information 1469-1995. Appellant was sentenced to an aggregate term of thirty months to fifteen years imprisonment.

On this appeal, appellant questions whether trial counsel was ineffective for failing to object to the imposition of sentence based upon erroneous computations of the sentencing guidelines. We find that trial counsel rendered ineffective assistance by failing to object to the trial court’s erroneous application of the amended sentencing guidelines. Accordingly, we vacate the judgment of sentence and remand for resentencing in accordance with the correct sentencing guidelines.

Our initial inquiry when reviewing a claim that trial counsel was ineffective is to determine whether the underlying claim is of arguable merit. Next, we must evaluate trial counsel’s performance to ascertain whether there was any reasonable basis designed to effectuate the appellant’s interest. Finally, the appellant must demonstrate that trial counsel’s ineffective assistance resulted in prejudice. Commonwealth v. Pierce, 515 Pa. 153, 157, 527 A.2d 973, 975 (1987).

In the present case, the Commonwealth admits that it provided the trial court with Sentencing Guideline Worksheets which were prepared incorrectly by the Commonwealth. Specifically, the sentencing ranges on the worksheets were calculated according to the amended guidelines which were effective for all offenses committed after August 12, 1994. 204 Pa.Code § 303.1(c). Both the Commonwealth and the defense agree that the amended guidelines were improperly applied to the present offenses which were all committed prior to August 12,1994.

After considering the presentence report, appellant’s character and the record, the trial court stated that “the Court will impose a sentence within the standard guidelines.” Sentencing Transcript, 12/15/95, p. 15. Based on the amended sentencing guidelines provided by the Commonwealth, the trial court sentenced appellant within the standard range to concurrent sentences of fifteen months to five years imprisonment for both counts of receiving stolen property, terroristic threats and theft. However, if the court correctly applied the preamended sentencing guidelines, the standard range of sentencing for each of the above listed offenses would have been eight to eleven and one-half months imprisonment.

In addition, the trial court sentenced appellant within the standard range of the amended sentencing guidelines to fifteen months to ten years imprisonment for two counts each of burglary, theft and criminal conspiracy. These sentences to run concurrently to each other but consecutive to the sentence imposed above. However, the standard range of the preamended guidelines provides for a sentence of twenty-four to thirty-six months imprisonment.

We agree with appellant that trial counsel was ineffective for failing to object to the trial court’s erroneous reliance on the amended sentencing guidelines. In Commonwealth v. McMullen, 365 Pa.Super. 556, 530 A.2d 450 (1987), the trial court sentenced the defendant using an erroneously computed prior record score. A panel of this court held that trial counsel could have no reasonable basis for failing to object to the incorrect computation and that such failure prejudiced the defendant. Id. at 453, 365 Pa.Super. 556. We stated that “when a sentencing court was not cognizant of the correct guideline sentence ranges before imposing sentence, the sentence must be vacated and the appellant resentenced.” Id.

In the present case, appellant’s underlying claim is clearly of arguable merit. Further, we find no reasonable basis for trial counsel’s failure to contest the trial court’s improper application of the amended sentencing guidelines. The Commonwealth contends that trial counsel had a reasonable basis for not objecting because, under the pre-amendment guidelines, appellant could have been sentenced to a greater aggregate term of imprisonment. Although appellant might have received a lesser aggregate sentence on account of the trial court’s error, we cannot condone counsel’s failure to contest an obvious error by the trial court. Rule 3.3(a)(1) of the Rules of Professional Conduct, entitled Candor Toward the Tribunal, provides that a lawyer shall not knowingly make a false statement of material fact or law to a tribunal. Although trial counsel did not provide the trial court with the incorrect sentencing guidelines, a tactical decision not to disclose the error could be the equivalent of an affirmative misrepresentation.

Finally, we must determine whether appellant was prejudiced by trial counsel’s failure to object. Without being advised of the correct sentence ranges, the trial court was deprived of the ability to impose an informed sentence. Thus, we cannot be certain how the trial court would have sentenced appellant had it been aware of the correct sentencing guidelines. Consequently, appellant was prejudiced by trial counsel’s failure to object and bring the error to the attention of the court. Accordingly, we vacate the judgment of sentence and remand for resentencing pursuant to the pre-amendment sentencing guidelines.

Judgment vacated; case remanded; jurisdiction relinquished.

      . In exchange for appellant’s guilty plea to the charges listed herein, the Commonwealth agreed to nol pros the following charges: receiving stolen property and intimidation of a witness on information 0136-1995 and burglary, theft, and criminal conspiracy on information 1469-1995.

      . Under the amended guidelines, appellant was sentenced to an aggregate term of thirty months to fifteen years imprisonment, while the preamended guidelines provide for a sentence of thirty-two to forty-seven and one-half months imprisonment.


author: CERCONE, President Judge Emeritus:

text:
    681 A.2d 793
    In re CHILD M., Minor Child. Appeal of Debbie D. SMITH, Natural Mother.
    Superior Court of Pennsylvania.
    Submitted April 29, 1996.
    Filed July 24, 1996.

      Nicole J. Spring, Public Defender, Williamsport, for appellant.
    Gerald W. Seevers, Williamsport, for Child M., appellee.
    Charles F. Greevy, III, Williamsport, for Lycoming County, Children & Youth Services, participating party.
    Before CIRILLO, President Judge Emeritus, BECK, J. and CERCONE, President Judge Emeritus.
   CERCONE, President Judge Emeritus:

This is an appeal from a final decree which involuntarily terminated the parental rights of appellant, the natural mother, to her minor child. We affirm.

Lycoming County Children and Youth Agency (the Agency) instituted the action underlying this appeal pursuant to section 2511 of the Adoption Act, 23 Pa.C.S.A. § 2101 et seq. The Agency alleged that appellant physically abused her young son, called “Child M.” in the trial court filings and proceedings. The Agency also averred that appellant sexually abused the boy and permitted and encouraged others to do so. As a consequence of this alleged ill-treatment, the Agency contended that Child M. suffered severe physical and emotional harm and that his best interests necessitated the termination of appellant’s parental rights so that he could be adopted. Appellant denied that she ever abused or neglected her son.

Child M. was born on January 1,1987 and is now nine years old. The Agency initially became involved with the family in December of 1987 because it received complaints concerning appellant’s neglect of her son. In June of 1989, Child M. was hospitalized for abdominal pain and rectal bleeding after ingesting metal fibers which became lodged in his intestinal tract. Five days later, the natural mother was arrested and charged with the murder of Child M.’s younger brother, an infant known as “Child N.” While appellant was incarcerated, Child M.’s maternal grandparents assumed custody. However, the Agency opposed that placement because the grandparents had an extensive history of Agency involvement. Nevertheless, the lower court approved the placement of Child M. with his maternal grandparents, subject to protective oversight by the Agency.

Appellant was ultimately convicted of involuntary manslaughter with respect to the death of Child N. While she was held in the State Correctional Institution at Muncy, the Agency closed Child M.’s case. Appellant was released in December of 1991. The Agency became involved again four months later, in early April of 1992, when it learned that appellant and her paramour were exercising unsupervised custody over Child M. and that someone had taken the boy to a hospital emergency room with injuries sustained after he purportedly fell down a stairway. The Honorable Thomas C. Raup, President Judge of Lycoming County, conducted a hearing on the matter on May 11, 1992 at which all parties were represented by counsel. President Judge Raup did not adjudicate Child M. to be a dependent child, but did enter a consent order remanding the boy to the custody of his maternal grandparents, subject to protective supervision by the Agency. The order provided that all visitation between appellant and Child M. would be supervised by the maternal grandparents.

Four months later, on September 11, 1992, the Agency filed a request for emergency custody alleging that during an investigation of the maternal grandparents for the physical abuse of one of their other grandchildren, the Agency learned that the grandparents were also assaulting Child M. The trial court granted the request and placed Child M. in emergency foster care. The trial court subsequently conducted a hearing on the case and approved long-term foster care placement for Child M. upon appellant’s stipulation. At this time, the Agency’s goal was to return the boy to his mother. On December 3, 1992, a placement case review resulted in confirmation of the child’s dependent status. The court directed the Agency to see that a psychologist monitored the progress of gradually increasing contact between appellant and Child M.

During the supervised visits, the Agency’s case workers noted that appellant and her son engaged in interactions of a sexual nature. For example, appellant “nuzzled” the boy on his genitals and fondled him through his pockets. When Child M. responded by touching his mother’s breasts, she laughed and giggled at him. In April of 1993, the Agency received a report that Child M. was the victim of sexual abuse by appellant and her paramour, Larry Probst. According to the report, the sexual abuse consisted of mutual touching of the genitals, oral sex and anal sex. The court appointed a guardian ad litem who filed a petition to terminate visitation between appellant and her son. After conducting a full hearing in the matter, the lower court terminated mother’s right to visitation pending the outcome of the sexual abuse investigation.

Two months later, on June 9, 1993, the Agency filed a request to change the goal in the case from “return to the mother” to adoption. The Agency subsequently filed a petition to terminate parental rights. Mother requested an independent psychological evaluation for the child which both the Agency and the boy’s guardian ad litem opposed. During the considerable delay that ensued, the court conducted regular placement case reviews. Eventually, the lower court approved mother’s petition for the appointment of a clinical psychologist to serve as her expert. Because of mother’s indigence, the court also approved payment of the costs for the evaluation. The trial court held a series of hearings on the termination petition between July of 1993 and February of 1995.

On June 14, 1995, President Judge Raup granted the Agency’s request and entered a decree nisi involuntarily terminating appellant’s parental rights. Appellant filed exceptions, which the trial court denied. President Judge Raup entered a final decree of termination on September 14, 1995. A timely notice of appeal followed. Appellant presents two issues for our consideration: (1) did the trial court err by admitting hearsay statements of the child into evidence and by refusing to require the child to testify; and (2) did the trial court err in denying appellant’s request for her psychologist to conduct a joint evaluation session with both appellant and Child M. present?

As an initial matter, we note that Pennsylvania courts place a different emphasis on a decision to involuntarily terminate the rights of a natural parent than on a petition to change the goal of the family service plan from reunification to adoption. In a change of goal proceeding, the focal point is the child and whether the Agency’s goal will serve that child’s best interests. In Interest of M.B., 449 Pa.Super. 507, 513, 674 A.2d 702, 705 (1996). By way of contrast, termination proceedings center on the parents, and whether their conduct justifies termination of parental rights. Id. This case implicates President Judge Raup’s termination order, not his decision to change the Agency’s goal from reunification to adoption.

Pennsylvania law is clear that the trial court’s decision on whether to terminate parental rights is governed by the statutory requirements of 23 Pa.C.S. § 2511. In Interest of M.B., 449 Pa.Super. at 512, 674 A.2d at 705; Commonwealth v. Arnold, 445 Pa.Super. 384, 389, 665 A.2d 836, 838 (1995). Appellate review of a decree which involuntarily terminates parental rights is limited to a determination of whether the Orphans’ Court decision is supported by competent evidence. In re Adoption of L.D.S., 445 Pa.Super. 393, 394, 665 A.2d 840, 841 (1995), appeal denied, 544 Pa. 610, 674 A.2d 1073 (1996).

A party seeking to terminate parental rights bears the burden of proving by clear and convincing evidence the statutory grounds for doing so. In re E.M., 533 Pa. 115, 121, 620 A.2d 481, 484 (1993); In re Baby Boy S., 420 Pa.Super. 37, 44, 615 A.2d 1355, 1358 (1992). “The standard of clear and convincing evidence means testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.” Matter of Sylvester, 521 Pa. 300, 304, 555 A.2d 1202, 1203-1204 (1989). See also: In re Shives, 363 Pa.Super. 225, 228, 525 A.2d 801, 802 (1987); Lookabill v. Moreland, 336 Pa.Super. 520, 523, 485 A.2d 1204, 1205 (1984).

In re Bowman, 436 Pa.Super. 10, 12, 647 A.2d 217, 218 (1994), aff'd by an equally divided court, 542 Pa. 268, 666 A.2d 274 (1995). The Superior Court must examine the record closely in such cases to ascertain whether the evidence supports termination. Id. at 14-15, 647 A.2d at 219. We will reverse if the evidence fails to support the Orphans’ Court decree and/or when the hearing court has failed to give adequate consideration to the effect of such a decree upon the welfare of the child or children. Id. at 15, 647 A.2d at 219.

In this case, the Agency brought its petition for involuntary termination pursuant to section 2511(a)(2) and (5) of the Adoption Act. Therefore, this case must be evaluated under the following terms:

Grounds for involuntary termination
(a) General rule. — The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds: ...
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent....
(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.

23 Pa.C.S.A. § 2511(a)(2) and (5). When considering a petition to involuntarily terminate the rights of a natural parent, the hearing court must give primary consideration to the needs and welfare of the child. In re E.M., 533 Pa. 115, 120, 620 A.2d 481, 483 (1993) (citing 23 Pa.C.S.A. § 2511(b)).

The statute for terminating parental rights outlines certain irreducible requirements which parents must provide for their children. In re Diaz, 447 Pa.Super. 327, 332-333, 669 A.2d 372, 375 (1995). A parent who cannot or will not meet the minimum requirements set by the Juvenile Act within a reasonable time following intervention may properly be considered “unfit,” and may properly have parental rights terminated. Id. Grounds for termination can consist of lack of capacity and not just affirmative misconduct. In re E.M., 533 Pa. at 120, 620 A.2d at 484. A parent who is incapable of performing parental duties is just as parentally unfit as one who refuses to perform the duties. Id. (citing In re William L., mi Pa. 322, 345, 383 A.2d 1228, 1239 (1978), cert. denied, 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192 (1978)).

The essence of appellant’s first contention is that the trial court did not possess an adequate record for its decision because the certified record is allegedly replete with hearsay statements. Appellant argues that no statutory or common law exceptions to the hearsay rule cover the challenged evidence. Appellant also complains that her “confrontation rights” were denied by the admission of the purported hearsay and by the trial court’s refusal to force the child to testify.

We shall address the final contention first. Appellant concedes that this case implicates only the Adoption Act and that she was not criminally charged with abusing Child M. Consequently, appellant has no recourse to the constitutional provisions which protect defendants in criminal proceedings. It is correct to characterize the termination of parental rights as carrying “a constitutional significance” because of the importance of the rights involved. T.J.B. v. E.C., 438 Pa.Super. 529, 543, 652 A.2d 936, 943-44 (1995). For this reason, our courts require clear and convincing evidence which proves the statutory grounds before they will act to sever the bonds between a natural parent and her child. Id. Nevertheless, despite the constitutional dimension of termination proceedings, there exists no direct civil equivalent to the federal or state constitutional clauses that govern the prosecution of crimes. Appellant has not cited any judicial decision, statute or constitutional provision which would entitle a natural parent to force an abused child to testify in an involuntary termination proceeding. We decline to create any such requirement.

The certified record shows that the hearing judge did not prohibit Child M. from appearing out of any desire to prejudice appellant’s case. As President Judge Raup explained on the record, he possessed clear evidence that there was a significant potential of inflicting severe psychological harm if Child M. were required to appear before the court. N.T. 2/95 at 271. In light of the extensive evidence presented on this point, which we discuss further infra, we cannot disagree with this determination by President Judge Raup. See In re Diaz, 447 Pa.Super. at 332-333, 669 A.2d at 375 (it is the prerogative of the hearing judge to make credibility determinations and to resolve conflicts in the evidence; the Superior Court may not reverse unless the hearing court’s conclusions have no support in the record, involve errors of law or are clearly unreasonable in light of the factual findings).

Appellant next contends that the statutory exception to the hearsay rule set forth at section 5985.1 of the Judicial Code is inapplicable to this case. We agree with this position. By its own terms, section 5985.1 is only relevant to criminal proceedings. However, we find this to be a “non-issue” in the present case because the certified record contains absolutely no indication that President Judge Raup ever invoked section 5985.1.

Appellant also complains that the trial court erred in admitting hearsay testimony into the record pursuant to the statutory exception set forth at section 5986 of the Judicial Code. The statute in question contains the following language:

Hearsay
A statement made by a child describing acts and attempted acts of indecent contact, sexual intercourse or deviate sexual intercourse performed with or on the child by another, not otherwise admissible by statute or court ruling, is admissible in evidence in a dependency proceeding initiated under Chapter 63 (relating to juvenile matters), involving that child or other members of that child’s family, if a court finds that the time, content and circumstances of this statement provide sufficient indicia of reliability.

42 Pa.C.S.A. § 5986.

Our inspection of the certified record indicates that President Judge Raup explicitly invoked section 5986 and permitted Ms. Linda Bloom, a caseworker for the Agency, to testify at a hearing conducted on July 6, 1993. This hearing was convened as a dependency proceeding initiated under the Juvenile Act. N.T. 7/6/93 at 4. President Judge Raup was thus entitled to admit testimony under section 5986 as long as he found that all the statutory conditions were fulfilled. However, the propriety of the lower court’s evidentiary rulings during the dependency proceedings are not presently before this court. This appeal arises from the decree of termination. The certified record clearly indicates that during the hearings conducted for the specific purpose of considering the termination petition, President Judge Raup carefully excluded from consideration hearsay statements admitted during prior proceedings. See, e.g., N.T. 10/4/94 at 21, 25, 26, 27, 32 (respectively excluding: details of abuse referral by hospital staff; factual findings made following prior agency proceeding; results of police investigation of whether Stroehmann’s Bakery placed metal fibers into its bread; administrative findings pursuant to dependency proceedings; and reports by prison officials of appellant’s conduct while she was incarcerated for killing Child N.). The record does not support the conclusion that President Judge Raup relied upon section 5986 during the course of the hearings called to address the termination petition.

Next, appellant makes a highly generalized complaint that the hearing court erred by admitting the statements of counseling professionals, caseworkers and Child M.’s foster parents concerning the boy’s remarks to them. It is well-settled that an appellant must provide the Superior Court with proper references to the specific place in the certified record at which challenged testimony appears. Pa.R.A.P., Rule 2119(c), 42 Pa.C.S.A. Unfortunately, appellant has not supplied us with the necessary citations to President Judge Raup’s allegedly erroneous evidentiary rulings. We cannot scour the record on appellant’s behalf trying to find mistakes by the hearing judge. It is the appellant’s responsibility to precisely identify any purported errors. Id. We cannot address appellant’s sweeping charge that the lower court incorrectly admitted too much “hearsay” because we lack references to specific instances of alleged lower court error and because appellant has failed to provide any argument concerning the pertinent rules of evidence with a discussion of all relevant exceptions to the hearsay rule. See Rule 2119(a) (the “argument” section of an appellate brief must contain a full discussion of the points raised accompanied by citation to pertinent authority).

We hasten to add, however, that we have fully and carefully studied the entire evidentiary record in this case in order to determine whether it supports the termination order. See In re Bowman, supra (explaining the Superior Court’s role when reviewing this type of appeal). In the context of this review, we have a few general comments on Pennsylvania law concerning hearsay evidence. First, we note that the well established definition of “hearsay” is evidence which contains “an out of court statement offered to prove the truth of the matter asserted.” Hammel v. Christian, 416 Pa.Super. 78, 82, 610 A.2d 979, 981 (1992), appeal denied, 533 Pa. 652, 624 A.2d 111 (1993). Not all remarks which a witness attributes to another person can properly be characterized as “hearsay.”

[A]n out-of-court statement is not hearsay when it is introduced purely for the purpose of establishing that the statement was made and not to establish its truth. Likewise, an out-of-court statement is not hearsay if it is offered to explain a course of conduct or to reflect the declarant’s state of mind.

Spotts v. Reidell, 345 Pa.Super. 37, 42, 497 A.2d 630, 633 (1985) (citations omitted).

We agree with the Agency’s argument that the mental health professionals, Agency caseworkers, and Child M.’s various foster parents properly testified concerning their direct observations of Child M.’s conduct. For the most part, this evidence was not hearsay because it focussed on observed behavior and not on statements attributed to the child. See Matter of Cunningham, 517 Pa. 417, 438-439, 538 A.2d 473, 484, appeal dismissed, 488 U.S. 805, 109 S.Ct. 36, 102 L.Ed.2d 16 (1988) (explanatory words are not hearsay when under the substantive law the pertinent inquiry is directed only to objective manifestations rather than to the actual intent or other state of mind of the actor). Nevertheless, we note that testimony as to what a child tells other people is admissible in order to establish that child’s mental state at the time he or she made the comment. Rinker Appeal, 180 Pa.Super. 143, 153, 117 A.2d 780, 786 (1955). See Liles v. Balmer, 439 Pa.Super. 238, 249, 653 A.2d 1237, 1242 (1994) (discussing L. Packel & A. Poulin, Pennsylvania Evidence § 801.3 regarding non-hearsay “state of mind” testimony). It was proper for President Judge Raup to permit mental health professionals to explain Child M.’s needs for particular types of therapy and to admit testimony that documented the child’s mental state and his manifestations of trauma. See also Bonavitacola v. Cluver, 422 Pa.Super. 556, 571-73, 619 A.2d 1363, 1371-72, appeal denied, 535 Pa. 652, 634 A.2d 216 (1993) (discussing the “state of mind” exception to the hearsay rule and also explaining why a statement which appears to be hearsay nevertheless may be admissible if offered for reasons other than proving the truth of the matter asserted); Pennsylvania Evidence, supra, § 803.3 (explicating “state of mind” exception to hearsay rule).

Appellant’s final argument regarding the evidence admitted in this case centers on the hearing judge’s treatment of testimony concerning Child M.’s “recantation” of his allegations of sexual abuse. Specifically, appellant contends that President Judge Raup did not give sufficient consideration to evidence that, after receiving Christmas presents from his mother in December of 1993, Child M. told counsellors and caseworkers that appellant had never sexually abused him. See Appellant’s brief at 13 (citing N.T. 10/4/94 at “291-225” and 249 as well as 10/6/94 at 112-114). When the Orphans’ Court has granted a petition to involuntarily terminate parental rights, the Superior Court must accord the hearing judge’s decision the same deference we would give to a jury verdict. In re Adoption of B.G.S., 418 Pa.Super. 588, 597-98, 614 A.2d 1161, 1166 (1992), appeal discontinued, 535 Pa. 628, 631 A.2d 1002 (1993). As trier of fact, only the hearing judge may assess the weight and credibility of the witnesses’ testimony. Id. It is up to the hearing judge to resolve any conflicts in testimony. Id. We may reverse the termination decree only if the lower court’s factual findings are not supported by the record or if the hearing judge applied an incorrect legal standard. Id.

Our initial difficulty in reviewing appellant’s challenge to the weight accorded to the “recantation” evidence is that appellant cites pages “291-225, 249” from the transcript of the hearing conducted on October 4, 1994 as two locations in which testimony on this point was recorded. The transcript for October 4th ends on page 132; it does not contain any number as high as either 225 or 291. The notes of testimony for the hearing conducted October 5, 1994 have been transcribed as a continuation of the October 4th transcript. The October 5th transcript begins on page 132 and ends on page 277. We therefore assume that appellant meant to cite pages 191-225 and 249 of the transcript from the October 5th hearing rather than “291-225, 249” of the October 4th transcript.

The testimony at issue here was provided by Roberta Marshall, a licensed psychologist who serves as Coordinator of the Child Victims Program for Divine Providence Mental Health Center. See N.T. 10/5/94 at 185-276. Ms. Marshall began treating Child M. in May of 1993 and continued therapy until shortly before the termination hearings commenced in October of 1994. The witness discussed the manner in which Child M. was referred to Divine Providence and the various therapeutic regimens used in his case. Ms. Marshall explained the extreme difficulty of treating the boy because of his fear, his ambivalent feelings toward family members, and his lack of trust in strangers. In particular, the psychologist noted that Child M. hid under furniture and reverted to a fetal position when violence was mentioned or if he was questioned about his mother. Id. at 192-197. Ms. Marshall described the progress of the therapy sessions and the boy’s increasing willingness to discuss specific incidents of sexual abuse. She gave a lengthy explanation of the art therapy program in which Child M. participated and showed President Judge Raup various drawings the boy produced during these sessions. Id. at 200-212, 216-17. In the course of her testimony, Ms. Marshall discussed specific incidents of “sexually reactive behavior” which Child M. displayed including masturbation and attempts to sexually abuse younger children. Id. at 212-215.

At one point in his therapy, Child M. began to ask Ms. Marshall about adoption and why other foster children could be adopted into a “forever place” but he could not. Id. at 218. In discussing her response, and the child’s repeatedly expressed desire for a permanent home, Ms. Marshall mentioned the boy’s continuing ambivalence toward his mother. Child M. displayed a protective attitude toward appellant and worried that the police would put her in jail again, but he did not want to live with her because he feared a repeat of the “bad stuff’ that happened in her home. Id. at 218-225, 227-235. In this context, Child M. talked about Christmas presents he received from his natural mother, the fact that he was acquainted with another foster child who was permitted to visit his own natural mother, and the different kinds of parental relationships portrayed in the movie Mrs. Doubtfire. Id. at 218-225. The psychologist explained that Child M. sometimes told lies about the events of his life because he was jealous of other children, confused about his emotions on a particular day, suffering from low self-esteem, or feeling the need to protect his natural mother from the police. Id. at 243-246, 249-250, 253-255, 260-263, 265, 271, 275-276. Ms. Marshall also testified that this type of behavior was normal in sexual abuse cases and that the trauma the child had experienced manifested itself in various ways, from denial that the events had ever occurred to physical tics and stammering. Id. at 260-270.

When viewed in its full context, it is obvious that Ms. Marshall attempted to provide the hearing court with a complete and balanced picture of Child M.’s mental state and the progress of his therapy. She neither glossed over instances in which Child M. denied that he had ever suffered from sexual abuse nor did she attempt to minimize the importance of these incidents. It was up to President Judge Raup, as the hearing judge, to decide whether he found Ms. Marshall to be credible and to determine how much weight he would assign to her testimony. In re Diaz, 447 Pa.Super. at 332-333, 669 A.2d at 375. We find no basis in the certified record to support the conclusion that President Judge Raup made an error of law in admitting this evidence or that he committed any abuse of discretion in his consideration of Ms. Marshall’s testimony.

Appellant also challenges the weight given to evidence presented by Laura Quick regarding the aftermath of Child M. receiving Christmas presents from his natural mother. Ms. Quick was the Agency caseworker who actually accepted the gifts and conveyed them to Child M. Her initial testimony on this point consisted of a factual description of her actions in delivering the presents and she did not discuss Child M.’s response. Id. at 111-114. Later, however, Ms. Quick stated that Child M. “reacted badly” even to this indirect contact with his mother. Id. at 119-120, 123-124. The witness was not asked for specific details concerning Child M.’s behavior and she did not volunteer such information. We see no indication in the certified record that President Judge Raup erred in receiving this evidence or that he either over- or under-emphasized it in reaching his ultimate decision in the case.

The final contention on appeal is that the lower court committed reversible error by refusing to grant appellant’s request for her own psychologist to conduct a joint session with both appellant and Child M. Although appellant claims that there has been no opportunity to “formally observe” the mother and child together, this is a patently false statement. Dr. Dan Egli, a clinical psychologist, evaluated Child M. and appellant for the court. See N.T. 10/6/94 at 49-88. As part of the evaluation process, Dr. Egli conducted six sessions with appellant and Child M. Id. at 58. The psychologist saw appellant and Child M. separately on three of these occasions. However, Dr. Egli directly observed the interaction between the boy and his mother during the remainder of the sessions.' Id. Child M. displayed confusion, heightened anxiety and the effects of trauma when in his mother’s presence. Id. at 59-60.

Also, contrary to appellant’s characterization of this case, the lower court did not approach the request for an additional evaluation of Child M. in a cursory manner. On June 17, 1994, President Judge Raup conducted a hearing to determine whether it would be harmful to permit appellant’s psychologist to examine Child M. Roberta Marshall, a licensed psychologist with Providence Health Systems, discussed her connection with the case. Ms. Marshall met with Child M. for three hours of counselling each week. She explained in detail the specific methodology she employed during these sessions, and stated that the boy manifested extreme difficulty in dealing with the sexual assaults he had endured and the physical abuse he had suffered. In particular, Child M. could not resolve the emotions associated with the murder of his younger brother. N.T. 6/17/94 at 3-7. He could not easily discuss any family related issues. To avoid questions pertaining to his mother, he would “roll up in a ball,” hide under furniture, or curl into the fetal position. Id. at 4,13.

The therapist considered it inadvisable to order an independent psychological evaluation for Child M. at this stage of his life because forcing him to reveal the details of his abuse to a stranger was highly likely to cause additional and severe trauma. Id. at 6, 13, 14, 17-18. Ms. Marshall stressed the fact that Child M. had already recounted his story to several Agency caseworkers and therapists, and that each time it was a very difficult struggle for him. Id. at 13. The witness also recounted physical symptoms and regressive behavior the child exhibited when he was compelled to discuss his experiences. Ms. Marshall concluded that she believed it would be harmful to force Child M. to relive the circumstances of his abuse yet another time under circumstances not directly related to his treatment. Id. at 17-18.

Nevertheless, President Judge Raup permitted appellant’s expert to interview and observe the child. Dr. Steven Anthony Ragusea, a licensed psychologist, testified that he evaluated Child M., appellant, and appellant’s paramour. At the hearing conducted on November 29, 1994, Dr. Ragusea admitted that the facts associated with this case could give rise to an inference of sexual abuse, and that such an inference was even “likely.” N.T. 11/29/94 at 155, 165. Furthermore, Dr. Ragusea conceded that the information he had received, in both written and oral reports, indicated that the interaction was “extremely traumatic” for Child M. the last time he saw his natural mother, that the boy curled into a fetal position and that he remained upset and dysfunctional for a “substantial period of time” thereafter. Id. at 122-123.

As we have already explained, the hearing court must give primary consideration to the needs and welfare of the child when considering a petition to terminate parental rights. In re E.M., 533 Pa. at 120, 620 A.2d at 483. In light of the extensive evidence contained in the certified record, we can only conclude that President Judge Raup carefully weighed both appellant’s rights and the court’s indisputable duty to protect Child M. from further trauma. See In re Diaz, 447 Pa.Super. at 336-338, 669 A.2d at 377 (the courts must remember that the essential needs of the child must be considered as well as the rights of the parent). Under the circumstances of this case, we cannot fault President Judge Raup for deciding that it was wrong to subject the child to a second set of joint evaluation sessions with his natural mother.

Mindful of the proper standards applicable on appeal from an order involuntarily terminating parental rights, we have meticulously reviewed the entire certified record forwarded to this court. We find that clear and convincing evidence exists of record which fully supports President Judge Raup’s ruling. We therefore affirm the final decree of termination.

Decree affirmed.

      . The trial court opinion indicates that the identity and whereabouts of the boy’s natural father are unknown. See Trial Court Opinion dated April 24, 1995 at 2. At the hearing conducted on October 4, 1994, the attorney for the Agency indicated that several persons who might be the natural father had already been contacted, and that the Agency was handling those matters separately. N.T. 10/4/94 at 2.

      . There is some confusion in the record as to whether this hearing occurred on February 1 or 2 of 1995. Both dates are reflected in the transcript. See N.T. 2/1/95 at 1 (cover sheet designating hearing date as "February 1, 1995”) and at 200 (giving date as "February 2, 1995” at beginning of transcription for testimony taken at the hearing).

      . Admissibility of certain statements
      (a) General rule. — An out-of-court statement made by a child victim or witness, who at the time the statement was made was 12 years of age or younger, describing the contact, sexual intercourse or deviate sexual intercourse performed with or on the child by another, not otherwise admissible by statute or rule of evidence, is admissible evidence in any criminal proceeding if:
      (1) The court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability.
      (2) The child either:
      (i) testifies at the proceeding; or

        (ii) is unavailable as a witness and there is corroborative evidence of the act.
      42 Pa.C.S.A. § 5985.1(a).

      . The witness defined "sexually reactive behavior” as occurring when children touch other children in a manner associated with victimization rather than normal curiosity. N.T. 10/5/94 at 213.