A defense attorney is asking a judge to dismiss three counts of aggravated assault against a Saxonburg man accused of shooting a 7-year-old boy with an air gun and helping to set the child on fire.

Alternatively, Edward Myers’ lawyer is asking Butler County Judge William Shaffer to force prosecutors to prove the felony charges merit further court action.

Myers, 36, allegedly attacked Daniel Podskalny while the boy was in his care May 25.

Court records allege Myers and his own sons, ages 15 and 11, shot Daniel with Airsoft and pellet guns. Myers allegedly followed the boy to the bathroom and poured nail polish remover over him. Daniel said that his shirt was then purposefully ignited, apparently by Myers’ older son with a lit cigarette, authorities said.

The county district attorney’s office has charged Myers with three counts of first-degree felony assault: one for allegedly dousing the boy in flammable liquid, one for allegedly shooting the victim with an air gun, and a final count alleging Myers had encouraged and incited “juveniles to punch, strike, and kick the victim in and about the head and body numerous times,” according to court records.

However, according to a request by defense attorney Gerald Cassady, Myers initially faced one charge of aggravated assault that was withdrawn as part of an agreement with him to give up his rights to a preliminary hearing.

Myers still faced lesser charges of child endangerment, simple assault, reckless endangerment, and possession of a controlled substance and paraphernalia.

Prosecutors added the three felonies before Myers was arraigned on Oct. 1.

Cassady’s request, filed Tuesday, alleges the new charges do not have the same origin as the allegations Myers waived to court, and therefore they should be dismissed.

In the alternative, the request asks the judge to schedule a hearing to determine if there is prima fascia evidence to support the new charges.

Prima fascia generally means to prove that a crime has occurred, and the accused is likely to have committed it. It is the standard used when determining if a charge should move from the district court to the court of common pleas for a trial, where conviction requires proof beyond a reasonable doubt, a more substantial standard than is needed in the district court.

Myers, who remains in the county prison on $250,000 bail, is next scheduled to appear in court Oct. 28.