The defense lawyer for a Tamaqua man accused of shooting another during a scuffle in the borough last year is challenging a change in the charges.

Charles D. Heffelfinger Jr., 24, of Hazle Street, was originally charged with attempted third degree homicide and related charges in the Feb. 12, 2017, incident.

But under a new Schuylkill County district attorney, prosecutor Senior Deputy Attorney General Nathan L. Boob on May 22 successfully petitioned the court to have the charge changed to attempted first degree murder.

Attempted murder in the third degree is a “legal impossibility,” Boob said outside the courtroom.

A charge of murder in the third degree is filed when a person kills another without planning or intending to kill him, and the killing is not committed in the course of a felony.

First degree murder is intentional.

Heffelfinger’s public defender, Kent D. Watkins, on Monday argued that no medical evidence was presented during Heffelfinger’s preliminary hearing that supported the contention that the man who was shot suffered life-threatening wounds.

Watkins said the two men struggled, and the gun went off. The victim was in outpatient care for eight hours, he said.

Boob said the bullet entered through the victim’s lower back/buttocks and came out the other side.

Further, he said, that Heffelfinger shot twice is evidence of intent.

Boob gave President Judge William E. Baldwin a transcript of Heffelfinger’s preliminary hearing to support his intention.

Baldwin will rule after he’s reviewed the transcript.

Heffelfinger, who remains free on $75,000 cash bail, also faces two felony counts of aggravated assault, two misdemeanor counts of simple assault and one misdemeanor count of recklessly endangering another person.

According to court documents filed by arresting officer Thomas Rodgers and testimony, Heffelfinger shot Gary Riedel, then 36, at about 1:50 a.m. while the two argued in the 200 block of Orwigsburg Street.

The argument stemmed from a disagreement between Heffelfinger and Riedel, who, with a friend, had brought Heffelfinger’s father home a neighborhood bar after he was asked to leave.

Police found an unloaded 9 mm handgun on Heffelfinger’s kitchen table.

Heffelfinger told another borough officer, Michael Hobbs, “It was me, I did it.”

According to Rodgers, Heffelfinger said he fired one shot as Riedel came after him, hitting him in the stomach.

He then fired a second shot, this one in the air, he told police.