WEST CHESTER – A Sadsbury man accused of illegally shooting and wounding a neighbor’s pet Irish Setter was found not guilty in Common Pleas Court Wednesday.
A jury of seven women and five men deliberated about 2½ hours before returning with its verdict in Judge Phyllis Streitel’s courtroom, acquitting Rudolfo “Rudy” Duenas on a single count of cruelty to animals, a misdemeanor. After the verdict, the prosecutor in the case withdrew a summary count of the same charge.
Duenas, 44, had fired a load of birdshot at the setter, named Patrick, that belonged to his neighbor on Western Avenue in the rural township in western Chester County last year. Duenas, who testified on his own behalf, had said he had seen the dog cornering his 6-year-old daughter in their yard and had fired at the dog to protect her.
Patrick, who Duenas said had caused problems in his yard along with another setter, Dugan, for months, including rooting through his trashcans, was hit in the left hindquarter. He was seriously wounded, but has largely recovered from the shot, although he still has pellets of shot in his body.
Duenas was charged by the Chester County SPCA in February after Sadsbury police had investigated the complaint about the shooting and decided not to press charges.
“My client is very happy at the outcome of this case,” said defense attorney Marc J. Lieberman of West Chester. “I just hope that these neighbors can now find some way to get along.”
Lieberman said the problems with the dogs, owned by Joseph Zydinsky, had largely abated ever since Zydinsky was cited for allowing them to run free without a leash after complaints from another neighbor.
Lieberman had painted Zydinsky as an irresponsible pet owner that contributed to the matter by failing to take adequate steps to keep the dogs from entering Duenas’ yard, even after Duenas warned him that he would shoot the dogs if they continued to cause problems.
His case was built around the state’s Dog Law statute, which allows those who see a dog attacking or threatening another person to take steps to protect them, including shooting or killing the animal. Duenas had also said that he thought he had fired a shell loaded with rock salt at Patrick, rather than birdshot, in an attempt to scare the dog away without harming it.
Assistant District Attorney Marilyn Seide Mitchell, speaking after the jury returned with its verdict about 1:30 p.m., suggested that the matter would have been handled better had Duenas not decided to bypass the SPCA or local police.
Duenas had testified on Tuesday that he thought it better to try to resolve the problem with Zydinsky on his own, rather than call authorities.
“We are disappointed, but respect the jury’s verdict,” Mitchell said. “If someone is having an issue with a neighbor’s pet, we urge them to call the police or the SPCA rather than to take matters into his own hands.”
Duenas told the jury that on Sept. 23, 2012, he encountered Patrick in his yard, cornering his daughter. He grabbed a double-barreled shotgun and loaded it with two shells, thinking they had salt and not birdshot in them.
Duenas said he was able to get between his daughter and the dog, and fired a shot at him from about 20 yards away. The dog growled, then ran from the yard, he said. He said he did not realize Patrick had been wounded with birdshot until later, he told the jury.
“I did not have any intention of killing the dog,” Duenas told the panel under cross-examination by Mitchell. “I did what I thought was necessary. It’s not the dog’s fault. It’s (Zydinsky’s) fault.”
Zydinsky, who testified Monday, had told SPCA officials that he let his two setters outside to play in a neighbor’s yard, which they had permission to do, the affidavit states. He called the dogs in, and although one came immediately, Patrick stayed out. Zydinsky said he went inside his home and soon after heard the gunshot. He said he did not think anything of the noise because shooting is common in the rural part of Sadsbury where he lives.
Zydinsky said he dozed off, and when he awoke he found Patrick lying in a pool of blood with numerous lead pellets in him. He told Turnbull that a veterinarian had been unable to remove the pellets from Patrick’s body, and that the pet has trouble walking, running and jumping because of them.
The charge of animal cruelty states that a person commits a misdemeanor if he or she “willfully or maliciously kills, maims, mutilates, tortures or disfigures any dog or cat, whether belonging to himself or otherwise.” The state’s dog law, however, permits people to take action against dogs, including killing them, if they are found attacking others.
This was the second trial in Common Pleas Court involving the shooting of a neighbor’s dog this year. Earlier, a jury found a West Vincent man guilty on dual charges of animal cruelty for shooting and killing two Bernese Mountain Dogs that he believed were attacking his flock of sheep.
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