WEST CHESTER – The trial of a Sadsbury man charged with illegally shooting and wounding a neighbor’s Irish Setter began in Common Pleas Court Monday.
The prosecution has filed charges of animal cruelty against Rodolfo “Rudy” Duenas, 44, for firing a load of birdshot at the pet last fall. The setter, named Patrick, was hit by the shot and injured, but did not die, police said.
Duenas contends the dog had been chasing his 6-year-old daughter, adding he had previously caught Patrick rooting around in his trash cans. In previous motions, his attorney has contended state law allows residents to shoot any dog caught in the act of attacking human beings.
But Assistant District Attorney Marilyn Seide Mitchell, in her opening statement to the jury of eight women and four men in Judge Phyllis Streitel’s courtroom, said that in the days immediately following the incident Duenas had not mentioned anything about his daughter.
Mitchell said he spoke to both the owner of the dog, neighbor Joseph Zydinsky, and a mutural friend, and said that he had shot the dog when it came on his property, as he had warned Zydinsky he would do in a previous telephone conversation.
“He didn’t call the police, he didn’t call the SPCA,” Mitchell said. Instead, he fired the birdshot at Patrick as the dog was retreating from the property.
Defense attorney Marc J. Lieberman of West Chester, in his opening statement, laid the majority of blame for the incident on Zydinsky, whom he labeled as an irresponsible dog owner who loved his pets so much he did not do enough to discipline them or control them from getting onto Duenas’ property.
“You can’t blame a dog for being a dog, just as you can’t blame a parent for protecting their child. The ultimately question is why did (Duenas) shoot the dog,” said Lieberman. “The question is, was he justified?”
According to an arrest affidavit, Duenas was charged in June by Rebecca Turnbull, an animal control officer with the Chester County SPCA, after an investigation was apparently conducted by the Sadsbury Township Police Department, which did not file charges against Duenas.
Turnbull’s affidavit states that she met with Zydinsky on Feb. 28 to discuss the matter involving Patrick, some weeks after the incident.
Zydinsky told her that on Sept. 23 two of his dogs, Patrick and Dugan, were outside playing 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.
Mitchell said in her opening that a veterinarian found between 50 and 75 birdshot pellets in the dog’s hind quarters.
The dog owner told Turnbull he had spoken with his neighbor, Duenas, and that Duenas admitted that he had shot the dog. Turnbull said that another Sadsbury man also said that he had spoken with Duenas and that the defendant told him that he had shot the dog while it was running away. The man said Duenas said he was sorry for shooting Patrick but did so because his wife had complained that the dog had been trespassing on their property and getting into the trash.
In an interview with Turnbull, Duenas allegedly told the officer that he had shot he dog, but blamed the matter on Zydinsky “because he allowed his dogs to run around the area.”
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.”
Mitchell told the jurors that the prosecution was proceeding on the premise that Duenas willfully maimed and disfigured Patrick.
The trial is expected to continue on Tuesday.
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