By Kristen Johanson

PHILADELPHIA (CBS) — A Philadelphia judge will decide whether to uphold an appeal in the case of the engineer for Philadelphia’s ill-fated Amtrak 188.

In September, reckless endangerment and involuntary manslaughter charges were dismissed against Brandon Bostian, but an appeal was later filed.

About a month after a Philadelphia judge dismissed all criminal charges against Bostian for lack of evidence, the state’s attorney general filed an appeal.

Senior Judge Kathryn Lewis-Streeter will hear arguments, and decide whether the case should go to trial.

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Before the statute of limitations was up, the district attorney’s office decided not to file charges, because they said there wasn’t enough evidence, but attorneys for the victims went to another judge, who ordered the DA’s office file charges.

But the DA stepped aside and bounced the case up the state, who then charged Bostian with 246 counts of reckless endangerment and eight counts of involuntary manslaughter.

Prosecutors say Bostian purposely disregarded risk when he accelerated the train. The defense argues the district attorney’s office decision not to file charges was the right one because there was no evidence to show Bostian was consciously disregarding life.

The appeal hearing is set for Wednesday morning.