NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-653

COMMONWEALTH

vs.

RADOSLAW CZERKAWSKI.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was convicted of twelve counts of animal 

cruelty following a jury trial.1 Prior to trial, the defendant 

moved for a change of venue due to what he claimed was 

substantial pretrial publicity that interfered with his right to 

a fair and impartial jury. This motion was denied. The 

defendant renewed the motion for a change of venue before a 

second judge, and it was denied again.2 After conviction, the 

defendant noticed an appeal, which we stayed to allow him to 

file a motion for a new trial. That motion was denied, and the 

1 The defendant was found not guilty on a single count of 

misleading police.

2 Neither motion judge was the trial judge.
2

defendant filed a second notice of appeal. In this consolidated 

appeal, the defendant argues that the pretrial publicity was so 

substantial as to require a change of venue due to impairment of 

the local jury pool. We affirm.

1. Background. a. Facts. Viewing the evidence in the 

light most favorable to the Commonwealth, the jury could have 

found the following facts. In January 2013, the defendant, 

Radoslaw Czerkawski, began working as a caregiver for Janina 

Stock, who was ninety-four years old at the time, after having 

been hired by her grandchildren. The defendant worked in that 

position, living with Stock in her home in Quincy, until Stock 

died on the morning of August 31, 2013. In February 2013, while 

he was working as Stock's caregiver, the defendant sent a 

message to Stock's granddaughter that Stock wanted to get a dog. 

The granddaughter remarked that Stock had never allowed her to 

have a dog, but there is no evidence in the record that she told 

the defendant whether he could get a dog. After Stock's death, 

the defendant submitted receipts for reimbursement to Stock's

grandson, one of which was for dog food. The grandson was 

surprised by this receipt, as he did not believe anyone in the 

house had a dog.

On the morning of August 31, 2013, the day Stock died, an 

emaciated dog with extensive injuries and no collar or other 

identification was found by two passersby, abandoned down the 
3

road from Stock's home. The passersby called the Quincy police 

department, and the responding officer called animal control, 

which picked up the dog.

Later that morning, the dog was brought from the Quincy 

Animal Shelter to the VCA South Shore Animal Hospital. A 

veterinarian examined the dog, which was a female white pit bull 

with brown spots. The veterinarian found that the dog was very 

emaciated, could not bear weight on any of her limbs, and had 

the following injuries: swollen joints, an injured eye, burns 

on her nose, a lacerated tongue, very long nails, and wounds on 

her head. The dog presented as if she were in pain. The 

veterinarian concluded that these were inflicted injuries. 

After the examination, the dog was euthanized due to the 

severity of her injuries.

A necropsy, which is a postmortem examination of an animal, 

was performed on the dog by another veterinarian. In addition 

to the things found by the first veterinarian, she also found 

that the dog had bruising in one lung, a blood clot in her 

chest, fractured ribs and spine, swollen and dislocated leg 

joints, and a fractured femur. This veterinarian, too, 

concluded that the dog's injuries were all inflicted.

At first, the police had no information about the dog 

beyond her condition, and they did not know who had abused the 
4

dog. As described below, there were several news stories about 

the discovery of the dog and about her condition.

After seeing one such news story on television, a woman

contacted the Quincy police department because she recognized 

the dog as her former dog "Kyia." Kyia was a pit bull mix that 

she had given away to a couple who responded to the woman's

Craigslist advertisement in May 2013. In June 2013, the couple

in turn gave Kyia away through a Craigslist advertisement. One 

member of the couple gave Kyia to a man who had what he 

described as an Albanian or Polish accent. Later, that member 

of the couple examined a photographic array and identified the 

defendant as the man to whom he had given Kyia with what he 

described as 89.9 percent certainty. At the time that the 

couple gave Kyia away, she was in good health and did not have 

injuries.

The Craigslist advertisement posted by the couple was later 

found in the Internet history on the defendant's laptop. His 

laptop also showed an Internet search for free pets, and his

browser history showed visits to several animal-related 

websites, including Petfinder and the Massachusetts Society for 

the Prevention of Cruelty to Animals.

The veterinarian who performed the necropsy on the dog had 

extracted a tissue sample and sent it to a genetics laboratory. 

Samples taken by the police from red-brown stains found in 
5

Stock's home were also sent to the laboratory. Finally, a 

sample taken from a collar found in the defendant's rental car 

was sent to the same laboratory. A forensic analyst at the 

genetics laboratory concluded that the deoxyribonucleic acid 

(DNA) profile for the tissue sample extracted from the dog's 

body matched the DNA profile for some of the samples taken from 

Stock's home and the sample taken from the collar.

b. Pretrial publicity. After the dog was discovered, when 

nothing about her was known and there were no suspects, there 

was substantial media coverage of her suspected abuse, and the 

dog was nicknamed "Puppy Doe." Photographs of the dog in lifelike positions taken at the time of the necropsy were circulated 

in the media, and the office of the district attorney for the 

Norfolk district (district attorney) asked the public for help 

in identifying the individual responsible for the abuse of the 

dog. During its publicity campaign, the district attorney's 

office issued a press release stating, "It is highly unlikely 

that this level of sadistic cruelty could be shown to one animal 

and not be part of a pattern involving other animals or perhaps 

vulnerable people." In September 2013, a vigil for the dog was 

held in Quincy, and the district attorney attended and spoke, 

making a statement similar to the one in the press release, 

which was reported in the media.
6

After the defendant's arrest in October 2013, the Facebook 

page for the district attorney's office posted updates regarding 

the schedule of the court proceedings. Numerous Facebook users 

made comments on these posts and on a Facebook page entitled 

"Justice for 'Puppy Doe.'" These comments called for the 

defendant to be incarcerated, protested the many continuances 

before the trial, expressed sympathy for the dog and outrage at 

her abuse, and some even called for the defendant to be 

deported, tortured, or killed.

Trial took place in March 2018, more than four years after 

the dog was found. At the beginning of each day of jury 

selection, the judge asked all the jurors as a group if they had 

seen or heard anything about the case. Then, at sidebar, the 

judge individually asked the jurors who had not already been 

excused for some other reason, about what, if anything, they had 

seen or heard. At the time of the trial, approximately fortyfive percent of the jury venire reported having seen or heard 

something about the case in response to the judge's question 

posed at the beginning of jury selection. Of the twelve 

deliberating jurors, one-third knew of the case prior to trial. 

The four deliberating jurors who had heard of the case were 

jurors 38, 42, 63, and 81. Juror 38 had heard of the case and 

knew that it was the so-called "Puppy Doe" case, but did not 

remember details other than the fact that the dog had died. 
7

Juror 42 had seen news stories about the case as recently as the 

night before trial, which included pictures of the dog and 

"speculation about what happened." However, the juror had not 

seen or heard anything about the defendant. Juror 63 thought he 

had seen something about the "Puppy Doe" case but seemed unsure. 

Juror 81 had heard of the case very briefly on the television 

news and knew that the dog had been euthanized. Jurors 38, 42, 

and 81 all stated that what they had seen or heard about the 

case would not impact their ability to be fair and impartial in 

the case, and juror 63, while not asked that specific question, 

stated that there was nothing he could think of that would 

impact his ability to be fair and impartial in the case. The 

defendant did not challenge any of these jurors for cause, nor 

did he exercise any of his peremptory challenges to strike them, 

and he had two peremptory challenges remaining when the jury 

were seated.

2. Discussion. The defendant argues that the pretrial 

publicity in this case required a change of venue. A motion for 

a change of venue may be granted if "there exists in the 

community where the prosecution is pending so great a prejudice 

against the defendant that he may not there obtain a fair and 

impartial trial." Commonwealth v. Toolan, 460 Mass. 452, 462 

(2011), S.C., 490 Mass. 698 (2022), quoting Mass. R. Crim.

P. 37 (b) (1), 378 Mass. 914 (1979). The judge retains 
8

"substantial discretion" in deciding such a motion, and we 

review such decisions for an abuse of discretion. Commonwealth

v. Hoose, 467 Mass. 395, 405 (2014).

The defendant bears the burden of showing either 

"presumptive" or "actual" prejudice. Hoose, 467 Mass. at 406. 

Where "the entire jury pool is tainted by exposure to pretrial 

publicity[,] the venire is considered presumptively prejudiced, 

regardless of the details of the voir dire process . . . , and 

even if individual members of the jury expressly assert their 

belief that they can be 'fair and impartial.'" Toolan, 460 

Mass. at 463. "However, presumptive prejudice exists only in 

truly extraordinary circumstances." Id.

a. Preserved claim of presumptive prejudice. In this 

case, the defendant brought a motion that he later renewed in 

advance of trial seeking a change of venue. Since the defendant 

filed his motions before voir dire and did not renew it before 

the trial judge, he could claim only presumptive prejudice, as 

there was no record support for claiming actual prejudice. The 

two main factors relevant to a finding of presumptive prejudice 

are (1) "the nature of the pretrial publicity, specifically 

whether it is both extensive and sensational," and (2) whether 

the judge was "able to empanel jurors who appear impartial." 

Hoose, 467 Mass. at 406. The latter is the factor of "primary 

importance." Id., quoting Toolan, 460 Mass. at 464. Given the 
9

timing of the defendant's motions, there was no evidence about 

that second factor in the record before the motion judges.

(Showing actual prejudice, of course, requires an examination of 

the answers of the jurors at voir dire. See Hoose, supra at 

408-409.)

In support of his motion to change venue, the defendant 

filed materials purporting to show both the inflammatory nature 

of the district attorney's public statements and the broad news 

coverage of the case. These included a press release posted to 

the Facebook page for the office of the district attorney and 

several news articles from shortly after the abused dog was 

found in 2013. The press release and articles contained the 

district attorney's request for information from the public 

regarding the dog's or perpetrator's identity. The request for 

assistance in finding the perpetrator cannot be construed as 

inflammatory. The articles and press release from 2013, 

however, also included the district attorney's speculation that 

it was "highly unlikely that this level of sadistic cruelty" 

could be limited to just one animal, and that there could have 

been other animal, or even human, victims.

The defendant also submitted two stories from shortly after 

his arrest. One was a news article that included a photograph 

of the dog and factual information about the defendant and his 

arrest. Another was a Facebook post by the office of the 
10

district attorney sharing video footage of a press conference, 

and the post is entitled "No known motive in Puppy Doe abuse 

case, probably just 'sick individual.'"

The defendant submitted Facebook posts from the office of 

the district attorney communicating case scheduling updates once 

the case against the defendant was underway. These updates 

included a post with a link to a story entitled "'Puppy Doe' 

suspect indicted on larceny charges." Although this was a 

factual update concerning the defendant's arraignment, this 

story could have alerted potential jurors to the fact that the 

defendant was also charged with larceny. For this reason, 

though not sensational, this information might have been 

prejudicial to those who were exposed to it. That said, 

"[a]lthough references to the defendant's past criminal 

convictions may not have cast him in the most favorable light, 

. . . fact-based publicity, even that which contains references 

to charges pending against the defendant, . . . is not the sort 

of sensational publicity that would give rise to a presumption 

of prejudice." Hoose, 467 Mass. at 407.

In addition to Facebook posts containing factual 

information made by the office of the district attorney, there 

were many comments made by members of the public on these 

Facebook posts. Some of these comments can be construed as 
11

sensational, with a few even going as far as to call for 

violence against the defendant.

We will assume without deciding that these identified 

pieces of publicity were sensational or otherwise prejudicial. 

Nonetheless, we conclude that there was no error in the motion 

judges' conclusion that the defendant failed in his burden to 

show the publicity was "extensive."

Publicity is not extensive if "the nature of the coverage 

becomes more factual and the frequency of coverage decreases in 

the time period between the crimes and jury empanelment." 

Hoose, 467 Mass. at 406. In this case, over four years passed 

between the alleged crimes and the trial, and that decrease in 

frequency and increase in factuality is precisely what the 

record showed. In support of his initial motion for change of 

venue, the defendant submitted four articles written about the 

animal abuse. Two of the articles were published in September 

2013 prior to the defendant's arrest, one was published in 

October 2013 shortly after the defendant's arrest, and the 

fourth was published in February 2014 after the defendant was 

indicted on larceny charges. The defendant also submitted the 

office of the district attorney's press release from prior to 

his arrest and press conference video footage from after his 

arrest, both of which were from October 2013. The defendant 

submitted no articles or other news media from any time between 
12

February 2014 and the time he filed the motion for a change of 

venue in June 2017.

In addition to the traditional media publicity, the 

defendant also submitted various Facebook posts made by the 

office of the district attorney providing updates on the status 

of the defendant's case, as well as comments on those posts and 

comments on a Facebook page called "Justice for 'Puppy Doe.'" 

These posts and comments were made at various times, from 

October 2013 through May 2017.3 However, the defendant presented 

no evidence that either of the Facebook pages was widely viewed 

by members of the community. None of the posts or comments on 

Facebook were "liked" by more than thirty-three viewers, or 

"shared" by more than forty-eight, which would seem to indicate 

a very low level of engagement in a county of 700,000 people.

Even though, subsequent to the defendant's motions for a 

change of venue, some jurors stated at voir dire that there had 

been press coverage of the trial in the days leading up to it, 

our record is devoid of any such material, as the defendant did 

3 Some of the Facebook posts and comments are dated with 

only a month and day, but without a year. Because these 

submissions were attached to the defendant's initial motion for 

a change of venue, which was filed in June 2017, we assume that 

those posts and comments were from 2016 and the first half of 

2017.
13

not include it in the appendix.4 As it is the defendant's burden 

to show prejudice, the only traditional news media before us was 

from more than four years prior to the trial, and the defendant 

provided no evidence that the more recent social media content 

was widely viewed, we do not conclude that the publicity was 

extensive. Thus, we see no abuse of discretion in the two 

motion judges' denials of the defendant's motions for change of 

venue.

b. Unpreserved claims of prejudice. i. Presumptive 

prejudice based on juror responses at voir dire. Before us, the 

defendant argues that presumptive prejudice was demonstrated not 

only by the evidence put before the motion judges, but by that 

evidence combined with what was revealed at voir dire. This 

claim was never raised below and so is not preserved. We 

therefore may order a new trial on this ground only if we find 

both that there was an error and that it created a substantial 

risk of a miscarriage of justice. See Commonwealth v. Alphas, 

430 Mass. 8, 13 (1999).

4 At the hearing on the renewed motion, the defendant's 

counsel asserted that he had submitted "well over I think four 

hundred pages of various published media." Before us, the 

defendant has submitted only twenty-two pages of published 

materials consisting of several newspaper articles, Facebook 

postings, and the comments thereto.
14

As described above, the factor of primary importance in the 

determination of presumptive prejudice is whether the judge was 

"able to empanel jurors who appear impartial." Hoose, 467 Mass.

at 406. Of course, the general rule is that "jurors' assertions 

of impartiality should be accepted by the judge." Commonwealth

v. Leahy, 445 Mass. 481, 494 (2005). In determining whether 

extraordinary circumstances exist such that pretrial publicity 

is so pervasive as to create a presumption of prejudice despite 

jurors' assertions of impartiality, courts may consider the size 

of the community in which the trial is to take place and the 

percentage of the jury venire who have heard about the case. 

See id. at 493-494. For example, prejudice was presumed in a 

case that took place in a small, rural community and in which 

almost ninety percent of the jury venire already had some 

opinion as to the defendant's guilt. See id., citing Irvin v.

Dowd, 366 U.S. 717, 725, 727 (1961). In contrast, there was no 

finding of presumptive prejudice in a case in which one-third of 

the jury venire not only knew of the case but had been excused 

at least in part for having actually been prejudiced, see Leahy, 

supra at 494, citing Commonwealth v. Clark, 432 Mass. 1, 6 

(2000), nor in a case in which forty-two percent of the jury 

venire were disqualified because they knew of the defendant, see

Leahy, supra, citing Commonwealth v. Angiulo, 415 Mass. 502, 

515-516 (1993).
15

Given the size of the community from which the jury panel 

was drawn, the number of jurors who had heard of the case, and 

the jurors' descriptions of what they had heard, this is not a 

case in which the defendant has demonstrated before us that, 

consciously or unconsciously, the jurors were mistaken about 

their ability to be fair and impartial. See Angiulo, 415 Mass.

at 515-516.

Because the judge thus was able to empanel an impartial 

jury, and the publicity was not extensive as described above, 

even though approximately forty-five percent of the jury venire 

reported having heard of the case, the judge would not have 

abused her discretion by finding that there was no presumptive 

prejudice. There was thus no error.5

ii. Actual prejudice. We turn to the argument that there 

was actual prejudice. Again, this was not raised below, so we 

review any error for a substantial risk of a miscarriage of 

justice. See Alphas, 430 Mass. at 13. A claim of actual 

prejudice is considered in the totality of the circumstances to 

determine whether the "pretrial publicity deprived [the 

defendant] of his right to a fair and impartial jury." Hoose, 

467 Mass. at 408. "A defendant's right to a fair and impartial 

5 Consequently, our decision on this question would be the 

same even had the claim been preserved.
16

jury does not require that jury members have no prior knowledge 

of the crime." Commonwealth v. Colon-Cruz, 408 Mass. 533, 551 

(1990). To determine whether jurors were actually prejudiced by 

publicity, courts have looked to the voir dire procedures used 

by the judge. See Toolan, 460 Mass. at 466-467.

In this case, the trial judge employed many safeguards to 

ensure that empanelled jurors were not actually prejudiced. 

Because the trial was expected to be lengthy, the judge gave 

each party eight peremptory challenges rather than the required 

four, see Mass. R. Crim. P. 20 (c) (1), 378 Mass. 890 (1979), 

and empanelled sixteen jurors instead of twelve. The judge 

asked the jury venire statutory questions as a group, the jurors 

filled out a supplemental questionnaire, and they were then 

questioned individually at sidebar. During the individual voir 

dire, the judge asked many of the jurors, including all the 

jurors who were eventually seated, if they had ever seen or 

heard of the "Puppy Doe" case and, if so, what they had seen or 

heard and if it would affect their ability to be fair or 

impartial.6 The attorneys for each party were also permitted to 

6 The defendant argues that this line of questioning was 

prejudicial because there had been a motion in limine to exclude 

the term "Puppy Doe" from the trial. However, counsel for 

defendant agreed at a pretrial hearing with the judge that the 

phrase should be used, but only at sidebar in jury selection 

where relevant with respect to pretrial publicity. And, at voir 

dire, the judge avoided use of the term "Puppy Doe" to jurors 

who already indicated that they had heard about the case until 
17

ask questions of the individual jurors. Finally, on both days 

of jury selection, after all of the jurors from that day were 

individually questioned, the remaining jurors whom the judge had 

found indifferent were questioned as a group by the attorneys 

for both sides. These safeguards allowed the judge to excuse 

for cause any juror she did not determine to stand indifferent, 

which helped to ensure that only jurors who could decide the 

case impartially were ultimately empanelled. As described 

above, after all of this examination, only one-third of the 

jurors who ultimately deliberated had heard about the case prior 

to the trial.

While the judge, on her own initiative, excused many jurors 

for cause over the course of individual voir dire, the defense 

counsel challenged only one juror for cause (unrelated to the 

pretrial publicity). The judge then excused the juror for 

cause. The defendant did not use all his peremptory challenges, 

using only six of the eight allotted.7 The lack of for-cause 

defense counsel requested that the judge specifically ask such 

jurors whether they had heard anything about "Puppy Doe."

7 The peremptory challenges were exercised at the end of 

each of the two days of empanelment. At the end of the first 

day, the judge expressed her openness to a party's renewing a 

challenge for a juror or requesting additional challenges if 

necessary. As such, there appears to have been no need for the 

defendant to avoid using peremptory challenges in order to save 

them for possible future use.
18

challenges by the defendant due to a juror's knowledge of or 

bias about the case coupled with the defendant's failure to use 

all peremptory challenges, indicated that he did not think, at 

the time of empanelment, that the jurors were impermissibly 

prejudiced by the pretrial publicity. See Commonwealth v. 

Morales, 440 Mass. 536, 543 (2003) ("failure to exhaust . . .

peremptory challenges . . . belies any claim of juror 

partiality"). Consequently, we think the trial judge could 

properly have found no actual prejudice (if this issue were 

raised before her), and therefore we see no error.8

3. Conclusion. We do not find that the motion judges 

abused their discretion in denying the defendant's motion or his 

renewed motion for a change of venue, nor that the trial judge

8 The defendant's appeal from the order denying his motion 

for a new trial also is before us in this consolidated appeal, 

but as he pursues no argument on this subject, we affirm the 

order without further discussion.
19

was required to order a change of venue sua sponte.

Judgments affirmed.

Order denying motion for new 

trial affirmed.

By the Court (Rubin, Singh & 

Hershfang, JJ.9),

Clerk

Entered: September 23, 2024.

9 The panelists are listed in order of seniority.