¶1dissenting.
¶2I dissent. Doyle v. Ohio, 426 U.S. 610 (1976), mandates reversal.
¶3In effect, the majority holds that cross-examination of the defendant concerning his failure to make a post-arrest alibi statement was constitutionally competent to impeach his alibi testimony at trial, i.e., to show that his testimony was a “recent fabrication”. Implicit in that holding is the finding that the defendant waived his right to remain silent by breaching his silence.
¶4In my view, Doyleis factually and jurisprudentially indistinguishable from the case at bar. Doyle had been arrested and given his Miranda warnings. On cross-examination, the prosecutor asked him why he had not told the arresting officer the “frameup story” he told at trial. Noting that “[sjilence in the wake of [Miranda] warnings may be nothing more than the arrestee’s exercise of’ his right to remain silent, the Supreme Court held that “it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” Doyle, 426 U.S. at 618 (footnote omitted).
¶5Apparently, the majority interprets this rule to apply only when an arrestee remains mute after he receives Miranda warnings. While it is true that “[bjoth the Court and the dissent in Doyleanalyzed the due process question as if [Doyle] had remained silent”, Anderson v. Charles, 447 U.S. 404, 407 n. 2 (1980), Doyle had not remained mute. After the police had explained the reason for the arrest, Doyle protested, “[I don’t] know what [you are] talking about”, Doyle, 426 U.S. at 622-23 n.4. Here, Squire de*641manded to be confronted by his accuser, a circumstance the majority characterizes as “an action inconsistent with an intention to maintain silence.” If so, it was no more so than Doyle’s protest. And if Doyle’s breach of silence was not a waiver of his right to remain silent, Squire’s demand was not.
¶6Nor does the fact that Squire participated in an “interview” with the police justify a finding of waiver. The record is utterly devoid of any account of the questions posed by the police and the answers given by the accused. For all this Court can tell, the “interview” may have been confined to the routine dialogue incidental to the “booking” process. Indeed, had the officer’s questions focused upon Squire’s involvement in the crime for which he was arrested, it is reasonable to assume that the Commonwealth would have offered evidence of Squire’s replies as proof of waiver. An appellate court should never presume waiver of a constitutional right from a silent record. See Boykin v. Alabama, 395 U.S. 238, 242 (1969).
¶7The reason the Doylecourt analyzed the due process question in that case as if the arrestee had remained silent was that he had said nothing of substance relevant to his involvement in the offense with which he was charged. The same is true here, and we should make the same analysis and apply the same rule.
¶8STEPHENSON, J., joins in dissent.
¶9 The form Squire signed when he was given his Miranda rights, sometimes misdescribed as a “Rights Waiver Form”, is advisory only; it does not constitute a written waiver. To the contrary, the form expressly advised Squire that “[y]ou may voluntarily waive the rights that have been explained to you and make a statement if you so desire.”
¶10 The majority analysis relies principally upon three cases, all of which are distinguishable from the instant case. In both Anderson v. Charles, supraand United States v. Mitchell, 558 F.2d 1332 (8th Cir. 1977), the arrestee had made substantial statements relevant to the crime; and in United States v. Beechum, 582 F.2d 898 (5th Cir. 1978), the challenged comment was not a comment on the arrestee’s silence but rather, as the majority has noted, “an appraisal of what the defendant said”.